ABSTRACT
A child’s custody rights are established at birth. The best interests of the child are taken into account when establishing custody rules under Islamic law. In cases where the mother is ineligible, custody is granted to other family members following Islamic law. This paper discusses and analyses the rules of child custody in Islamic law and argues that most of these rules are not divine. Although this rule can occasionally be challenged, it is largely out of date historically.
KEYWORDS
Child Custody, Guardianship, Custodian, Child’s right, Conditions, Terminal, Revival.
INTRODUCTION
In custody battles, both sides make every effort to establish that they have the right—or the better right—to be granted custody of the involved children. When reading the legal provisions on custody, one will quickly discover, to one’s surprise, that the majority of them is a list of obligations and responsibilities, while very few of them address the issue of entitlement. Because of this, some legal systems, including the English and Scottish, have purposefully and explicitly placed more emphasis on the duties of custodians than on their rights.
So, the topic at hand is: What does Islamic law say about the concept of custody in terms of the law? Is it an obligation or a right? Due to the delicate, weak, and defenceless nature of the children involved, custody is a concept that demands extreme caution and attention, especially when choosing the correct caretaker. So, the issue of custody eligibility raises yet another contentious one. Women are the only ones who can conceive and breastfeed infants naturally. So, the role of women in the custody procedure should be evaluated appropriately. What part do women play in the Islamic system of custody is the issue at hand? These concerns will be looked at in this essay in light of both modern researchers’ and classical jurists’ perspectives.
RESEARCH METHODOLOGY
We used the doctrinaire technique for this research paper, which calls for the use of both descriptive and analytical forms of writing. We browsed a variety of websites, blogs, editorials, and publications online related to custody of Islamic Laws.
REVIEW OF LITERATURE
The sources of literature that the researcher put to use were not limited to just journals and books but also included online pdfs and e-books. JSTOR, an e-website helped the researcher dig deep into the topic by providing access to relevant Cambridge journals which were exceptionally useful. Some case laws were a few and the journals focussing on the concept of prescriptive rights were very few. It briefly summarizes all the relevant facts and information about the topic.
DEFINITION OF CUSTODY (HADANAH)
Hadanah, according to Lisan Al-Arab, is derived from the verb hadanah. Hadanah, which can also mean nurse, bring up, or rear a child, literally means to clasp in one’s arm, to embrace, or to hug someone.[1] Hadanah, then, is the act of bringing up, rearing, or nursing a kid. The office, or occupation, of carrying, rearing, or fostering a child has also been included in the definition.
The words “hadanah” and “kafalah,” which are used interchangeably, both refer to raising and caring for children. Hadanah is a terminological term that refers to the protection provided to those who are incapable of acting for themselves, such as children and the mentally ill, as well as the care provided to them, such as taking care of their food, drinks, and other similar needs to promote whatever is to their advantage. The jurists believed that this term was most suited to describe the custody system under Islamic law because it seemed to have an emotional and bodily connotation.
CUSTODY AS A TYPE OF GUARDIANSHIP
The child has the right to custody from birth. Hadanah, which translates to mean nursing, nurturing, upbringing, caring, and raising, is the Arabic word used to describe custody.” Hadanah, which is defined in Islamic law as “the caring for the infant during the period when it cannot do without the woman in a prohibited degree of relationship, i.e. mahram who has the lawful right to bring it up,” is the term used to describe the responsibility for raising an infant when it cannot survive without a woman.” Care for the child who is unable to care for themselves is the purpose of custody.[2]
Wilayah is the Arabic word for guardianship. Hadanah and wilayah can be distinguished in the following ways: custody entails raising, nursing, or nurturing the child and daily attention to their emotional and personal needs. The ability to carry out legal business and contracts while taking responsibility for their legal repercussions is referred to as guardianship(Wilayah). While a child is in custody, they must reside with the custodian, but guardianship can be used even if the child does not reside with the guardian. Due to the nature of the responsibilities, guardianship is granted to male relatives and custody to female relatives. The responsibility for raising the kid is allocated to the mother or, in the event of her absence or ineligibility, to other female relatives because it is assumed that a young child needs a female adult to care for it and handle its affairs. When a child reaches the age of discretion, they can take care of their daily needs on their own, but they still need training and education, which are given to the father or, in the event of his absence or disqualification, to the male relatives because it is assumed that they are better suited for such tasks.
Guardianship here is divided into two categories:
- Guardianship of person; and
- Guardianship of property.[3]
The authority and practice of managing the ward’s personal affairs, including marriage, schooling, discipline, health care, and future employment opportunities, is known as guardianship of a person. The authority to carry out, manage, and reach agreements over contracts and other legal behaviour relating to the ward’s property is known as guardianship of property. All legal experts concur that, if the father is still living, he will be the children’s natural guardian over both their person and their property. The chosen guardian or the male agnate (‘asabah), in that order of priority, will take over both the guardianship of the person and that of property in the absence of the father.
It is possible to think of the connection between hadanah and guardianship (wilayah) as a complicated system of rights and responsibilities assigned to each qualified party (s). The fundamental difference between the two ideas is that wilayah is more concerned with choices that indirectly or directly affect the child’s current and future welfare, whereas hadanah is more tied to the emotional care and nursing of the infant. Hence, it is impossible to effectively practise hadanah without really living with the child, whereas wilayah can be done from afar whether or not the guardian is physically present with the child.
Hadanah, on the other hand, is a more female-oriented function according to Islamic law, whereas Wilayah is often a male-oriented one. Of course, this does not imply that men are limited to providing rational assistance and women to providing emotional support. The separation of the two ideas is meant to result in a realistic division of labour that serves the children’s interests. 16 In truth, Islamic Law exhorts both sexes to the best of their abilities to nurture and preserve their logical inclinations. In the distribution of the aforementioned responsibilities, Islamic Law has recognized the degree of women’s specific capacity and aptitude to provide emotional support, the intimate bond between women and their young children, and the young children’s innate propensity towards their mothers. Because of this, the differentiation between male-oriented and female-oriented custody roles vanishes once the child reaches a certain level of independence.
PEOPLE ENTITLED TO CUSTODY
THE MOTHER
The mother will have the first claim to the child’s hadanah as long as she is eligible, according to all jurists. Even when compared to the father, the mother is the ideal person to raise a young child due to her virtues and traits such as love, kindness, gentleness, and tenderness.[4]
The fact that only the mother and not the father is physically able to breastfeed her child is one of the reasons to give the mother priority, especially for the little infant. Since it has been established scientifically that a mother’s milk is the best milk for a child, this is crucial for the infant’s welfare. In addition, the mother’s superior claim to kindness towards her kid above everyone else, including the father, may be compared to the mother’s earlier claim in the instance of hadanah.
MATERNAL GRANDMOTHER
According to the majority of jurists, maternal grandmothers will be given the right if the mother is deceased or ineligible. This is justified, among other things, by the fact that the maternal grandmother gave birth to the mother, who then gave birth to the child. Because of this close connection to the child’s mother through direct birth, the maternal grandmother is seen to have a greater claim to the child.
THE FATHER
The Hanbalis believe that the father has a third priority, which is after the mother and maternal grandmothers, even though Imam Ahmad in one of his opinions placed the father immediately after the mother. If both male and female relatives make claims to hadanah, the Shafi’is also place the father in third place. Yet, according to the Hanafis, the right of hadanah only passes to the child’s father and other male guardians if the child’s female relatives are not available. 45 In the absence of the mother, maternal grandmother, maternal aunt, and paternal grandmother, the father will have the right to hadanah, according to Imam Malik.
PARENTAL GRANDMOTHER
Although legal scholars have different opinions regarding the status of the paternal grandmother, the consensus is that she should come after the maternal grandmother and not before. The paternal grandmother, however, has precedence over the maternal grandmother, following Imam Ahmad, because she is related to the male agnate (‘asabah), i.e., the father. He further contends that in the event of a direct birth link (wiladah), both the paternal and maternal grandmothers hold equal legal standing because the paternal grandmother gave birth to the father, and the child was born from the father.
THE SISTER
The right to hadanah will pass to the sisters, who will have priority over the maternal and paternal aunts and all other family members, if the mother and her mother and the father and his mother, as specified above, do not exist or are disqualified. Their great affinity with the child (since they share a father or mother) and the fact that their inheritance rights are stronger than those of other family members account for this precedence.
MATERNAL AUNT
The majority of legal experts concur that maternal aunts are placed after sisters in terms of legal authority. The majority of legal experts concur that the maternal aunt does not have as much of a claim to hadanah as the paternal grandmother.The Hanbalis, who share the majority’s opinion, defend it using two justifications: the connection based on a direct birth link and the primacy right of inheritance.
PATERNAL AUNT
The majority of jurists hold that the paternal aunt will inherit the hadanah right if the maternal aunt is unable to do so. It is also mentioned that individuals who are twice connected to the child will have preference over those who are only once related. Al-Kharqi believes that the paternal aunt should take precedence, though. Because they are related to the male agnate, the father’s relatives are given preference over the mother’s relatives.
NIECE
The niece was given a very high priority by the Shafi’is, coming just behind the maternal aunt and before the paternal aunt on the priority list. Nonetheless, the Hanafis make a distinction between a sister’s daughter and a brother’s daughter; the sister’s daughter is given priority over the sister. 67 On the other hand, the sister of a brother comes before the paternal aunt but after the maternal aunt. 69 The daughter of the brother follows the maternal aunt because the brother, who lacks hadanah (in the presence of other female relatives), is the source of her hadanah, whereas the maternal aunt’s hadanah derives from her bond with the mother.
CONDITIONS OF CUSTODIANSHIP
Both male and female custodians must meet several prerequisites to be eligible for hadanah, according to Islamic law. These are what they are:[5]
(1) Legal capacity
To be eligible for custody, the custodian must have the full mental ability, or in the opinions of certain jurists, must have reached puberty and maturity. Also, the custodian must be sane.As a result, a child or someone who is insane cannot be an ahl al-hadanah because they require care from others. However in the case of the mad, if the insanity is cyclical and only lasts for a little period (for example, just one day every year), such a person would not be disqualified,
(2) Trustworthiness
The custodian must meet a reasonable moral standard to be eligible for custody. A person is ineligible for custody if they engage in one or more big sins or continues to engage in lesser sins (such as drinking alcohol, engaging in adultery, or refusing to offer the required prayers). This requirement may be an effort to ensure that the person given the responsibility of custody is someone with high morals and character because the child may, and frequently will, adopt that person’s way of life. So, the youngster should be with a person of good character for the child’s welfare.
(3) Ability to bring up the child
to uphold the welfare of the child, a blind person, or an old person who needs somebody to look after him or her, or one who is busy with his or her work and may neglect the child, or a person who suffers from a serious communicable disease, such as leprosy, cannot be entrusted with the care of a child. However, in the latter case, if the duty can be carried out by somebody else who is readily available in the same place, such a person will not lose his/her eligibility.
(4) Muslim
According to the jurists, a non-Muslim cannot be a member of the Ahl al-Hadanah, The verse that states, “… and never will Allah provide to the unbelievers a method (to prevail) over the believers,” is the foundation for this.This verse expressly negates any influence that non-Muslims may have over Muslims. The risk in this situation is that the child raised under the hadanah of non-Muslims may adopt their way of life.
(5) Residence
The father or other guardians still have the obligation and responsibility, and therefore the right to supervise and manage the kid’s upbringing, even though the mother or other female custodians will typically have the hadanah of the child. Hence, the mother and the child are typically advised to remain close to the father so that he has easy access to watch over the child.
(6)Marriagerestrictions
A female caretaker must also adhere to another criterion, which is that she must not get married while she is in charge of the child. Regardless of whether the child in her care is a boy or a girl, she will lose her eligibility once she marries during this time.
TERMINATION OF THE PERIOD OF CUSTODY
The period of hadanah ends whenever a boy reaches puberty and adulthood (rushd), following the Hanbalis, Shafi’is, and Hanafis. The Malikis, however, only consider reaching puberty as the end of custody. In this instance, the young man gains full legal capacity and is free to choose whether to remain with or separate from his family. Yet, Islamic law strictly forbids any desire to break away from the family since it is a sign of ungratefulness. The young man is instead urged to remain with his parents and to continue helping them.
Even while the institution of custody terminates when a girl reaches puberty (and, in the opinions of certain jurists, reaches adulthood), the institution of guardianship will endure in other ways. These factors relate to living arrangements and marriage contracts. The father or other guardians have the right to prevent the female ward from living alone, according to Hanbalis and Shafi’is, who also hold this view regarding dwelling. The Malikis assert that a young woman must move in with her father or guardian if her mother does not live in a secure setting. The Hanafis distinguish between a lady who has had prior marriage experience (bikr) and a girl who has reached puberty but has not yet experienced marriage (bikr) (thayyeb). In the second situation, she is free to stay anywhere she pleases, as opposed to the former, when she must stay with the father or guardian in the absence of the father. 208 The reason for this is that, in contrast to a previously married lady who has greater experience and understanding of the potential tricks and deceptions of men, an unmarried girl lacks sufficient experience and runs the risk of being easily tempted by men. She will have to reside with her father or other adult guardians if it is not safe for her to live alone. Although a woman’s consent to the marriage contract is a necessary prerequisite for marriage arrangements, a bikr woman’s consent must be joined with her father’s or testamentary guardian’s consent because they both have this right.[6]
REVIVAL OF THE RIGHT OF CUSTODY
The right of hadanah will resurrect after all obstacles to it have been removed. In other words, the right to custody is temporarily suspended but not eliminated when there are obstacles in the road. Hence, following the Hanbalis, the female custodian’s right will come to life once her marriage is annulled.[7] However, Imam Malik forbids such a rebirth since it is impractical to give the child back to the divorced mother because it is feared that if she marries again, her claim to the child will be forfeited, and it should instead be given to the father or other entitled parties. It appears that the explanation for this is that moving from one place to another frequently is not in the child’s best interests. This may be a reference to the value of maintaining the child’s status quo in modern parlance.
SUGGESTIONS & CONCLUSION
A youngster requires someone else to look after him or her and handle his or her requirements. Islamic law establishes custody regulations according to the needs of the nor. Unless she is disqualified and custody is given to another relative, according to Islamic law, the mother has custody. The majority of the custody regulations outlined by Islamic law are based on yihad rather than being derived from divine law. These are largely merely assumptions; for instance, it is assumed that the mother will look after the child better during his or her formative years. Also, it is assumed that the father will be able to protect or discipline the child better.
Laws of Custody are more important than those of the individual who is entitled to the child’s hadanah. Secondary factors have also been employed, such as the child’s close kinship, direct birth connection, and inheritance order of priority. Among the factors that can be taken into account are the opinions of a kid who has reached the age of discernment. The custodians must meet certain requirements and possess certain qualities, such as full legal capacity, good physical capabilities, and good moral qualities and character, to ensure that the duties and responsibilities of the hadanah office are carried out as effectively as possible.
Author: YASH JHA
College year: FIRST YEAR
College: DHARMASHASTRA NATIONAL LAW UNIVERSITY, JABALPUR, MADHYA PRADESH
[1] EBRAHIMI, S. N., Child Custody ‘(Hizanat)’ under Iranian Law: An Analytical Discussion,39 Family Law Quarterly, 459 460-461(2005).
[2] Legal Services India E- Journal, https://www.legalserviceindia.com/legal/article-7215-concept-of-guardianship-under-muslim-personal-law.html, (last visited April 10th,2023)
[3] Social Laws Today, https://sociallawstoday.com/guardianship-under-muslim-law/, (last visited April 11th, 2023)
[4] Sabreen, Dr. Mudasra, Custody in Islamic Law: A Law based on Presumptions . Islamic Studies , 223–243(2017), https://ssrn.com/abstract=3378371
[5] Law Rato, https://lawrato.com/indian-kanoon/child-custody-law/child-custody-laws-in-india-2691,(last visited 12th April, 2023)
[6] Sabreen, Dr. Mudasra, Custody in Islamic Law: A Law based on Presumptions . Islamic Studies , 223–243(2017), https://ssrn.com/abstract=3378371
[7] Zahraa, Mahdi, and Normi A. Malek, The Concept of Custody in Islamic Law, 13, Arab Law Quarterly, 155–77(1998)