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)

 

Husband saying “Go,you are free till qiyamah


Q: A husband and wife were having a bad fight, she was packing her bags to leave him, he was happy to let her go and he said to her “go, you are free till qiyamah”. Does this mean she is divorced from him?

A: If the husband intended talaaq at the time of uttering these words, one talaaq-e-baain (irrevocable talaaq) will take place.

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

الطلاق على ضربين صريح وكناية فالصريح قوله أنت طالق ومطلقة وطلقتك فهذا يقع به الطلاق الرجعي … ولا يفتقر إلى النية (الهداية 2/359)

وأما الضرب الثاني وهو الكنايات لا يقع بها الطلاق إلا بالنية أو بدلالة الحاللأنها غير موضوعة للطلاق بل تحتمله وغيره فلا بد من التعيين أو دلالته (الهداية 2/373)

Answered by:

Mufti Zakaria Makada

Checked & Approved:

Mufti Ebrahim Salejee (Isipingo Beach)

Having relations with one’s wife in her iddat


 

Q: My husband gave me one talaaq. Before I could complete my iddat he had sexual intercourse with me against my will. Is our marriage still reconciled even though it happened against my will?

A: If your husband issued one talaaq-e-raj’ee (revocable talaaq), then through having relations with you (though by force) before the iddat could complete, the talaaq will automatically be revoked and you will be taken back into his nikaah.

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

باب الرجعة  وإذا طلق الرجل امرأته تطليقة رجعية أو تطليقتين فله أن يراجعها في عدتها رضيت بذلك أو لم ترض لقوله تعالى { فأمسكوهن بمعروف } من غير فصل ولا بد من قيام العدة لأن الرجعة استدامة الملك ألا ترى أنه سمى إمساكا وهو الإبقاء وإنما يتحقق الاستدامة في العدة لأنه لا ملك بعد انقضائها والرجعة أن يقول راجعتك أو راجعت امرأتي وهذا صريح في الرجعة ولا خلاف فيه بين الأئمة

قال أو يطأها أو يقبلها أو يلمسها بشهوة أو بنظر إلى فرجها بشهوة وهذا عندنا وقال الشافعي رحمه الله لا تصح الرجعة إلا بالقول مع القدرة عليه لأن الرجعة بمنزلة ابتداء النكاح حتى يحرم وطؤها وعندنا هو استدامة النكاح على ما بيناه وسنقرره إن شاء الله والفعل قد يقع دلالة على الاستدامة كما في إسقاط الخيار والدلالة فعل يختص بالنكاح وهذه الأفاعيل تختص به خصوصا في حق الحرة بخلاف المس والنظر بغير شهوة لأنه قد يحل بدون النكاح كما في القابلة والطبيب وغيرهما والنظر إلى غير الفرج قد يقع بين المساكنين والزوج يساكنها في العدة فلو كان رجعة لطلقها فتطول العدة عليها (الهداية 2/394)

( هي استدامة الملك القائم ) بلا عوض ما دامت ( في العدة ) أي عدة الدخول حقيقة إذ لا رجعة في عدة الخلوة

ابن كمال وفي البزازية ادعى الوطء بعد الدخول وأنكرت فله الرجعة لا في عكسه وتصح مع إكراه وهزل ولعب وخطأ ( بنحو ) متعلق باستدامة ( راجعتك ورددتك ومسكتك ) بلا نية لأنه صريح ( و ) بالفعل مع الكراهة ( بكل ما يوجب حرمة المصاهرة ) كمس ولو منها اختلاسا أو نائما أو مكرها أو مجنونا أو معتوها إن صدقها هو أو ورثته بعد موته جوهرة ورجعة المجنون بالفعل بزازية ( و ) تصح ( بتزوجها في العدة ) به يفتى جوهرة ( وطئها في الدبر على المعتمد ) لأنه لا يخلو عن مس بشهوة ( إن لم يطلق بائنا ) فإن أبانها فلا ( وإن أبت ) (الدر المختار 3/ 397-400)

قال الشامي في رد المحتار :  قوله ( وإن أبت ) أي سواء رضيت بعد علمها أو أبت وكذا لو تعلم بها أصلا (رد المحتار 3/ 400)

Answered by:

Mufti Zakaria Makada

Checked & Approved:

Mufti Ebrahim Salejee (Isipingo Beach)

 

 

I do not want you, I want another one!


Q: Does saying “I dont want you, I want so and so” constitue talaaq?

bismillah.jpg

A: This will not constitute a talaaq.

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

إذا قال لا أريدك أو لا أحبك أو لا أشتهيك أو لا رغبة لي فيك فإنه لا يقع وإن نوى في قول أبي حنيفة رحمه الله تعالى كذا في البحر الرائق (الفتاوى الهندية 1/ 375)

Answered by:

Mufti Zakaria Makada

Checked & Approved:

Mufti Ebrahim Salejee (Isipingo Beach)

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.

Proliferation of Divorces


Proliferation of Divorces
The alarming explosion of Talaaqs in our present times is a cause for great concern. The mention of the word Talaaq which was at one time taboo in our communities has now become such a common and cheap word that in some marriages every argument features this word; either the husband threatens with it or the wife demands it. Forgotten is the grave warning of our Rasul (sallallahu-alayhi-wasallam) that Talaaq causes the grand throne of Allah to shudder. This is an expression to convey the utter abhorrence of Talaaq in Islam (unless it is extremely unavoidable).
Casual Attitude
The sanctity of Nikah and marriage has all but left the hearts of these people. Nikah has almost become like another of the hundreds of disposable commodities in the market – disposable plates, cups, towels, lighters, etc. A casual and cavalier attitude has almost developed towards the institution of Nikah, an attitude that says if it doesn’t work out, it doesn’t matter, we’ll live on – maybe try again. Some people have gone through a number of divorces in their lives without a care in the world.
Factors
What has contributed towards this deplorable state of affairs? A number of factors could be responsible for this recent proliferation of talaaqs which has resulted in so many broken homes and shattered families. Lack of proper Islamic education is one big factor. Lack of fear of Allah is another. Selfishness, hard-heartedness, stubbornness, callousness, an uncompromising attitude is another factor. Never overlook the devastating effect of western culture and values in the home – it is poison for the Muslim marriage. Inability to handle the pressures of marriage and an escapist attitude is a major factor. Anger is another dangerous factor.
When a person loses control of his anger and flies into a towering rage, he can do the most drastic and foolish of things in the world. The fruits of anger are very bitter. Sayyidina Rasululluh (sallallahu-alayhi-wasallam) has mentioned: “The beginning of anger is madness and the end result is sorrow and regret.” Whatever the cause maybe, in order to gain some temporary, imaginary victory, or to score a few points in one’s favour, an extremely short-sighted decision is taken and the long term implications are totally ignored.
In almost all instances the short sightedness adopted in handling the situation by giving or demanding the Talaaq results in much regret, misery, sorrow and heartache later on. Often the damage is too extensive to rescue or salvage the situation. At that time, a frantic effort is launched to obtain fatwas or rulings to reverse the devastating damage of Talaaq, but to no avail. Even if a fatwa is obtained under false pretences or grounds, it cannot render lawful that which Allah has rendered unlawful and forbidden.
Parents’ Attitude
Nowadays, some parents and family elders too adopt an indifferent, casual attitude and hardly bring any pressure on the warring couple to pull together and resolve their differences. The sad reality is in some instances, they have actively promoted the process of disintegration of the marriage and encouraged the Talaaq! At times, they simply shut the door on the any discussion or dialogue to address the problem. Sometimes, the pride of the parents or family comes even before the interest of the couple who inwardly are willing to reconcile but do not have much say because of family pressures.
Wider Community
Then there is the wider Muslim community that sits by as spectators, as if watching some boxing or wrestling match. They are content to pass remarks and indulge in idle gossip on the sad state of affairs. This is a very dangerous attitude. The fire of divorces and marriage breakdown is spreading while people are watching idly. Heaven knows whose house will burn down next if the situation is not arrested in good time. The least that the general public can do when they hear about a marital dispute is to make fervent Dua that Allah must give Hidayat and understanding to the couple and save their marriage. To save marriages, Islam has actually permitted the speaking of “white” lies if that will bring about some degree of reconciliation in the couple. If the situation is left to spiral out of control, the fabric of our society will be rent asunder. Dozens of divorced women (and men) are not healthy for the well-being of society. Something has to be done about the present situation.
Solutions
Just as the factors of Talaaq are numerous, the solutions to the problem are also multi-faceted. Mass-scale educational programs on matrimonial matters is an absolute imperative. Through the pulpit and various fora and Islamic media, both print and electronic, a sustained educational campaign is to be launched. Spiritual programs that contribute towards Allah-consciousness and fear of accountability are absolutely imperative and need to be increased many fold. Attitudes and outlooks need to be changed.
Rectification of character and conduct – Islahe-Nafs – is a crying need. Marriage counseling with an Islamic orientation must be increased dramatically. Pre-marital educational programs should become compulsory for all prospective couples – boys and girls. A decadent
lifestyle and western values have to be shunned and spurned if a marriage is to work and thrive. Islamic values based on simplicity and humility and a sunnah way of life is a guarantee for a happy married life. With these concerted efforts, the tide will slowly turn, Insha-Allah. The rot will be remedied and a solid and firm family structure will result. This in turn will become the bedrock of solid communities, giving rise to a mighty Ummah. For those who are experiencing marital problems, please don’t simply throw the towel in and walk out. Please be patient, forgive, forget and overlook, make duas, seek help and guidance, make one more attempt to make it work – this time it might work out with Allah’s help!
Mufti Zubair Bayat

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.

HIJAAB FOR IN-LAWS AND THE DANGER OF RECKLESS MINGLING


/>Question: After the death of my father, my husband’s father married my mother. He is therefore, both my father-in-law and stepfather. One day, whilst I was alone in the room, he entered and engaged me in conversation. Then suddenly he grabbed and hugged me. He tried having sex with me. I harshly admonished him and tried my best to physically ward him off. After screaming at him, he withdrew and went to take ghusl. He had groped me very immorally. Now what is the Shariah’s command for us?
ANSWER When people ignore or scorn the Shariah, then they becomes entrapped in the snares which shaitaan and the nafs prepare for them. The Fuqaha have fourteen centuries ago warned that it is incumbent for a man to maintain a distance from his daughter-in-law and vice versa. The Shariah orders a degree of hijaab for them, and also for a man and his stepmother, and vice versa, and for a man and his stepdaughter, and vice versa.
Whilst these kinds of relatives are mahram of a kind, the fitnah of sexual lust is ever present. If the man had not married the woman who is his wife, it would have been permissible for him to marry her mother. This clearly confirms the presence of the fitnah of lust which is kindled when hijaab is relaxed – when they become too friendly and when they are alone.
Now see what has happened in this case. It is about the worst disaster. Your Nikah has terminated, and never can you ever live with your ‘husband’ as man and wife. There is no way in which your relationship with your now ex-husband can be repaired. The damage is irreparable and perpetual. In addition to your marriage having ended, the marriage of the devil (your father-in-law/stepfather) with your mother has also perpetually ended. Two marriages have been destroyed for life by the evil Satanism of a man who succumbed to the inordinate lust of his satanic nafs.
Now, regret is of no avail. When the shaitaan (your father-in-law) had perpetrated his villainous immorality, he was fully under the spell of Iblees. When the nafs overshadows the Aql, then a man is incapable of thinking. Imaam Ghazaali said that when a man is overcome with lust – especially filthy lust of this type – then 75% of his brain cells become inoperative. After he has destroyed himself, shaitaan steps aside. The man then comes to his senses, and shaitaan mocks at him while the unfortunate slave of the nafs shed tears. But then it is too late.
When we proclaim the Haqq of the Shariah – what the Fuqaha have ruled – and we say that a female may not travel alone with her father-in-law nor be alone with him, then some satanic ‘molvis’ disgorge considerable rubbish. Now let these moron ‘molvis’ unravel the rot in which these two woman and the devil are trapped.
If you and your mother, because of fear and shame for people, sweep the filth under the carpet and continue to live with your ex-husbands, then know that you will pass the rest of your days in an adulterous union, and the resultant offspring will be illegitimate. Be more concerned of the ultimate humiliation and punishment in the Aaakhirah.
What has happened to you, is happening on a large scale in the community all over the world. Almost total lack of fear for Allah Ta’ala coupled with ignorance of the Shariah induces people to conduct themselves recklessly and to plunge into immorality without any concern for the ensuing terrible consequences in this world and in the Hereafter. It is essential – Waajib – to exercise extreme caution for in-law relatives.

A man gave his wife one Talaaq, then took her back….


Q. A man gave his wife one Talaaq, then took her back. After some time he gave her another Talaaq. Then before expiry of her iddat he took her back. A Mufti said that he should have waited for her iddat to end. Thereafter perform Nikah. He would then again have the right of three Talaaqs. Is this correct?
A. The respected Mufti Sahib has made a grievous error in understanding the mas’alah. Even if Nikah was again performed after expiry of the iddat, the first two Talaaqs remain suspended. The expiry of the iddat and the nikah do not nullify the first two Talaaqs. Marriage to another man nullifies existing Talaaqs. The husband will have the right of only one Talaaq regardless of expiry of iddat and performance of nikah.

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.