IMPORTANT LEGAL AND ISLAMIC ISSUES INVOLVED IN THE CUSTODY OF MINOR

  Authors:Maria Zafar,   Sakina Iraqi, Kanwal Zahra,  Safia Javed, Fazila Nawaz

                                  

THESIS STATEMENT

The child custody issue’s in Islamic legislation continues since the codification of fiqh that has resulted in a non-unified rule for the child custody case whereas, the legal issues varied according to the facts of the case. For the solution of child custody issue’s principle of child welfare, desire of child and qualification of the claimant are the main considerations that are viewed by the courts. 

2          ABSTRACT 

 Judges and Jurist have played a vital role in figuring out the legal and Islamic issues involved in child custody cases. The issue’s related to child custody are due to unsettled opposite rules by the Schools of Thought and these problems also vary according to the facts of the case. This research has focused on both practically and legislative issues that are related to child custody through case laws. The research has analyzed the custody issues with reference to Islamic jurisprudence, the Muslim world and Pakistan. Critically evaluation is made for custody issues of abandon children and that is demanded by parent after separation. 

3          INTRODUCTION

Child custody is a question of care, possession, guarding and maintenance of child’s life after the divorce of parents. Yet, it is also a matter of concern in cases of abandon children. The problems related to child rights are dealt vigilantly in every society. Thus, Islamic jurisprudence in matter of child custody considers various elements such a capacity of parents, age of child and else to give an accurate decision that supports welfare of the child. Principles of various schools of thoughts and various contemporary court practices in the Islamic world have given a deep insight to the Islamic and legal issues related to child custody in each case. In contemporary Islamic world facts are given weight age as compare to the principles while figuring out the issue and deciding child custody cases. The different nature of child custody issue’s have being resolved based on the given priority to child welfare, desire of child and capacity of parents. Nevertheless, for the solution of this issue’s, Quran and Sunnah are always kept as the primary source.[1]

4          CHILD CUSTODY IN ISLAMIC JURISPRUDENCE [2]

In Arabic language word Hidhanat is used for custody which literal meaning is training or upbringing of the child. Technically, this word is defined as physical or material possession of the children. The word guardian and custody seems to give similar connotation, however is not the same terms. It is often argued that guardianship is a superior right than custody. The principles of Shariah imply that father is the natural guardian of the person and property of the child. Yet, hidhanant is dealt as the child’s right, not of parents. Thereby law of hidhanat is farmed considering the role of both parents and priority is given to the parent who can contribute better to the welfare of the child. It is not always the mother that is given the custody of child in certain situations child is given the option to choose between the parents. Sometimes, it’s given to grandmother or maternal uncle even in the presence of parents and if it is not suitable to give child to mother due to her religion or profession than court decides who the custody must be given to. Overall, welfare of child, desire of child and parents qualification is considered for the custody of child.

5          CHILD CUSTODY IN QURAN AND SUNNAH[3]

5.1          Quran

Explicitly, there is no verse in Quran that discuss custody of child but Muslim Jurist supports the child custody issue with verse of fosterage in Ayat al Radhat that oblige mothers to breast feed their infants for two years. The infant needs care, love and affection of mother that are vital for upbringing of child and fostering child remains with mother. Hence, all the jurists agree that mother has the first right to claim for hadanah as long as she is qualified. 

5.2         Sunnah

Amr b. Shuaib reports the tradition from his grandfather that a woman came to Prophet and said “Messenger of Allah, my womb is a vessel to this son of mine, my breast, a water skin for him and my lap a guard for him, yet his father has divorced me and wants to take him away from me.” Messenger of Allah then said “You have more right to hi as long as you don’t marry.”  Due to the high degree of attachment between the mother and son, the custody was given to mother by Prophet. According to the prophet and decisions of companions it can be concluded that right of custody is in the years of infancy is given to mother. At a certain age his desire is taken into consideration and mother is given the right to custody as long as she is not married.

6          IMPORTANT ISLAMIC ISSUES ON CUSTODY OF MINOR[4]

Until the time of companions the custody of child was given to mother in the early years and when the child reaches a certain age three considerations were kept in mind for the right of custody to be given that are the religion of parents, choice of child and welfare of the child. Deviation from this order of principles can be observed during the codification of fiqh of five leading Schools of thoughts. All of the five scholars give different ruling to the specification of age, preference of parents and conditions during the cases of child custody.

6.1         School of Thoughts[5]

Abu Hanifa believes that custody is right of father when boy reaches age of 7 and girls after attain puberty.

Imam Malik opinion is that mother has right to custody of son till he speaks clearly and of daughter till her marriage.

Shafi and imam Hanbal gives right of custody to mother till age of seven for both son and daughter. After attaining this age option is given to children to choose parent.

The shia fiqh gives mother right to keep son till two years and daughter till she is seven and then is given to father.[6]

6.1.1        Leading Case of Child Welfare [7]

An important case of child custody is reported in Nail al Autar, where child custody was challenged by both the parents. For selecting the custodian court give the option to child. Child selected father and when the court asked the reason he confessed that mother compel him to go to school whereas father allow him to play and does whatever he like. Upon this the court give the custody to mother. The shows that principle of welfare of child is always observed while deciding the custodian in the traditional Muslim legal system.

7          GENERAL QUALIFICATIONS FOR CHILD CUSTODY

·         The faith of parents, especially of mother is concerned in custody cases. A Muslim mother is preferred to given the custody, however it is not the ultimate condition. A non-Muslim mother can also be given the custody if father is not qualified.

·         Intellect is a basic requirement both parents must not be insane. Both in case of periodic or chronic insanity parents are disqualified

·          Freedom is one of main qualification for mother. If mother is in imprisonment and father or a legal person can take care of child then it is preferred not to send child in atmosphere of harshness such as jail.

·         Mother for the custody of child must not be married

7.1         Loss of the Required Qualifications for Child Custody[8]

If either of the parents, while holding the custody of his or her child, loses any of the qualifications for this task, this will transfer the right of custody to other relations. When parents gain the qualification they are given back the right of custody.

7.1.1        Loss of Mother's Qualifications

According to some of the jurists, if the mother lacks or loses one of the qualifications required for the custody of her child, then the father will substitute her and undertake the duty of the child's custody. In the contrary some also claim that in this case the maternal grandmother substitutes and fulfills her duty.

7.1.2        Loss of Father's Qualifications

 when father is lacking any qualification the custody is transferred to the mother. In absence of mother, to the grandmother and then comes the hierarchy of other close relations such as sister, paternal and maternal uncles. 

8          LEGAL ISSUES OF CHILD CUSTODY[9]

Legal custody is a right awarded to parent to make decision regarding child’s life after divorce of parents. Depending on the circumstance of the case the legal custody can be joint or sole. Joint legal custody is a way where both parents express their desires in upbringing of their child. However, when parents are not having any agreement then court makes decision for sole legal custody to one parent. [10]

8.1         Issue of Child Custody before the Age of Two

Some jurists believe that the custody of a child before the age of two is to be undertaken by the mother, others believe that the custody of the child is upon both parents, even though they are separated.

According to the content the traditions are divided into two categories;

8.1.1        Partnership of both parents in child custody

This traditions, including that of Dawud b. Husayn. It  itself includes all parents; divorced or the one who are still in  marriage bond, and denotes to take  child custody in their first two years of life of both parents.

8.1.2        Child custody as exclusive to the mother

Most of the jurist gives priority to mother's in case of custody of child before two years. Moreover, these jurists correlate breastfeeding and child custody and implied that during the breastfeeding period the child custody rests with the mother. They give the reference of the statement of the verse 233 of Surat al-Baqara which states ‘’Mothers shall breastfeed their children for two full years.’’[11]

8.2         Child Custody after the Age of two

The priority is given to mother in the custody of a son up to the age of two and a daughter up to the age of seven. However, different schools of thought have different views regarding this and court set different practices according to facts of case.

8.3         Child Custody in Death of One Parent

In case of death of any parent the tradition of Ibn Abi ʿUmayr's denotes that the other parent is preferred over the executor. If the other parent is not qualifying then paternal grandfather and other relations come. Other views have also been raised in Islamic jurisprudence that is to transfer of custody to near of kin according to the hierarchy of their inheritance like to its paternal kin and maternal aunt.

8.4         None of the Parents Being Alive

We both parents are not alive then the preference is made according to the willingness of adopting the responsibility from the kin and child’s welfare, affection and care is kept in mind

8.5         Parents' Relationship during the Child Custody

The parents' separation in itself creates tension between them, which may lead to hostile and vengeful behavior.[12] After divorce when both parents are qualified for custody they can be given mutual custody. Both father and mother has right to suit in demanding right to visit child.[13]

8.5.1        Case law Imran Butt v Mehreen Imran

The custody of a seven years old daughter was given to mother. The father demanded for temporary custody of the child in the summer vacation. The court gave him temporary custody but restrained him from removing the child from the territorial jurisdiction of the court. The court considered the fact that the father was constantly giving maintenance to the child and his second wife had filed an confession stating she had loved and cared for the child and would not damage her while granting temporary custody.[14]

9          LEGAL CUSTODY ISSUES IN CASE OF ABANDONED CHILDREN[15]

The custody of abandon children is quite different from former discussed early. Since, here the contest can be made between the finder and any other body. Thus, there are abundant issues related to custody matters in case of abandon children.

9.1         Capability for Custody of abandon Child

The person demanding the right of child custody must be of sound mind. If a finder is an insane and there is no other claimant for child custody there it becomes the states right to take the custody of child. When the finder of the child is a reprobate (fasiq) person the Islamic ruler (the judge of the institutions in charge) would take over the child from him or her. 

Being a Muslim is not a condition for such a task the reason as two basic goals legitimize the collection of the abandoned children and fulfilling the child basic and natural needs and providing for its educational requirements, both of which can be have enough money by a non-Muslim person, too. If we are doubtful about the permission of leaving the child custody to a non-Muslim, we should know that the practical principle of exception denotes its permission, whether the child is a Muslim or a non-Muslim.

Paying for the expenses of the child care is not upon the finder. Relatively, if the child owns property, the expenses will be paid in that way but if the child does not have such property, the Islamic state is responsible for paying for the expenses and in case of the government inability to pay for it, provision of expenses will be upon the well-to-do class or the public.

9.2         More than one Claiming Custody right of Abandon Child

Some jurists believe that documented evidence should be examined between the claimants and custody must be given to the one who has the evidence. Both claimants have the evidence that according to the validity of evidence the matter will be decided. Other view holds that by comparing features of religion, wealth and type of residence the better claimant will be choose.

9.3         Gender to be Preferred for Abandon Child Custody

Allama Hilli claims that although affection is stronger in women, the men's physical superiority and their higher strength makes them more consistent to be delegated with a child's custody. To our mind, there is no gender advantage in taking care of the child as what is important is the benefit and interests that the child receives.[16]

9.4         Claiming paternal or maternal Relations with the Child

The claimants of having paternal or maternal relation with the child have to prove the relation for gaining the right of custody. In maternal relations mere confession is not accepted the evidences are needed to be brought any cost.

10     CHILD CUSTODY LAWS IN THE MUSLIM WORLD

10.1     Middle East

In Saudi Arab Hanbali fiqh is applied there by in cases of divorce mother is taking custody of child until seven or nine for by and for girl till her marriage. Iran follows the Jaffari School hence custody is to father over the age of seven years for girl and two years for boy. Syria follows the Hanafi fiqh thereby after divorce if woman has home she takes child till age of seven or nine for boy and till eleven years for girl and if father is not qualified court can extend the time. Iran follows both Jaffari and Hanafi fiqh, the custody of boy and girls is ten years yet can be extended upon the desire of child to live with any parent. Kuwait follows Maliki School thus mother can take custody of boy till he attains age of puberty and of girl till the marriage.

10.2     Africa

In Egypt, the Hanafi School is the main School of fiqh. In case of divorce the women can take the custody of boy until the age of ten and girl until the age of twelve. In case of the interests of the children the custody can be extend. The Maliki School is the main madhab for Algaria. The wife is taking the custody of their children till the age of 16 for boys and 18 for girls and can be extended if mother is not remarries with someone. In Libya and Morocco the Maliki School is the main Madhab in these countries the time period of the Custody is till the age of puberty for boys and till the marriage of the girls.[17]

10.3     Asia

In Central Asia region most of the Muslims are follow Hanafi School. In turkey, the law of Shariah is eliminating in 1926. In divorced, the women are taking the custody of children by the custom and the decisions of the Courts. The guardian and ward act 1890, governs the custody cases in Bangladesh and India. The Court also considers the age, religion and gender of the children who is minor and the capacity of the guardian which is proposed as guardian for minor and also consider the opinion of the minor who is able to decide. In Sri Lanka, there s very less legislation made in the concept of the personal status laws of the Muslim. In Maldives the children which are less than the seven years can live with their mother and if the mother remarries with other person then custody may be tendered to the maternal grandmother, paternal grandmother or to the father. Then after the seven years of age the children can decide to whom he\she wants to live.

11     ISSUES’S OF CHILD CUSTODY CASES IN PAKISTAN

The conflict between traditional and modern prospective never led to any consensus for any firm legislation related to child custody cases during the formation of  Family Law ordinance.  A general view prevails that with the dissolution of the marriage child custody is given to father when the child is seven. However, the practices of the cases seem to address child custody issue’s more than the general principle and Family Law Ordinance. It is observed that Pakistani courts prefer a case by consideration of facts rather than apply rigidly applying principles established by Muslim jurisprudence. [18]

11.1     Preference of Father’s Religion

11.1.1    Case Imran Ali vs. Mst. Iffat Siddique

The Court decided giving the custody to father for the fact that he was an Ismaili Shia and is in a better position to raise children according to his fiqh. Court followed that child follows father’s religion and matter of sunni-shia marriages child should follow father’s religion. In every matter related to minor the court will give preference to child’s welfare and interest over that of parents rights. [19]

11.1.2    Childs Welfare

11.1.3    Case Muhammad Bashir vs. Ghulam Fatima[20]

The court gave the custody to mother even she was remarried. Court justified that child welfare is paramount and all other rules are subsequent to it. The court considered that if living with mother after child attains puberty is good for his welfare than father will not be given the custody. For the welfare of child the court can also go against any agreement made between parents.

11.2     Custody Welfare of Minor not of Parents

11.2.1    Case Bulan vs. Rahiman [21]

Father applied for transfer of child’s custody at age of ten from mother. Court imposed the condition that all the expenses that were incurred by mother must be returned for acquiring custody.   Karachi High Court however, invalidate the condition by stating that custody should be welfare of minor not of the parents.

11.3     Desire of the Child

11.3.1    Case 1994 MLD 1950[22]

Minor attained age of 17 and lived with mother since his birth. He desired to live with her mother because he was well looked after by his mother. The court accepted the desire of the child and dismissed the custody application of father.

12     CONCLUSION

These issues on child custody are varied in number. Both the legal and Islamic issue related to child custody are tried to solve wisely according to the welfare of child. In dealing with problems related to child custody judges in the Muslim countries and Jurist in the Islamic jurisprudence have played a vital role.