First right to custody

Question: Who has the first right to custody of a child after divorce?

Answer:

If the husband and wife are divorced however they have a minor born out of the terminated marriage. The mother of the child has the right of custody over the child. The father cannot take this child away. This right is known as right of hizanat and it can be enforced against the father or any other person. However, the father will have to pay for all the expenses that will be borne in order to bring up the child. If the mother does not take the child, and instead, gives it to the father, he will have to take it. The mother cannot be forced to keep the child.

Among the Hanafis, it is an established rule that mother's right of hizanat over her son terminates on the latter’s attaining the age of 7. The Shias hold the view that the mother is entitled to the custody of her son till he is weaned. Among the Malikis the mother's right of hizanat over her son continues till the child has attained the age of puberty. The rule among the Shafiis and the Hanabalis remains the same. Whereas among the hanafis the mother is entitled to the custody of her daughters till the age of puberty and among the Malilikis, Shafiis and the Hanabalis the mother's right of custody over her daughters continues till they are married. Under the Ithna Ashari law the mother is entitled to the custody of her daughters till they attain the age of 7

Awarding of Guardianship

Question: What circumstances does the court consider in awarding guardianship?

Answer:

In appointing or declaring the guardian of a minor, the Court shall be guided by what appears in the circumstances to be for the welfare of the minor. In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. If the minor is old enough to form an intelligent preference, the Court may consider that preference. The Court shall not appoint or declare any person to be a guardian against his will.

Refusal of mother to take custody of the child

Question: What if the mother is unwilling to take custody of the child?

Answer:

If there is no mother or she refuses to take the child, the maternal grandmother and then the maternal great grandmother have the right of custody. Thereafter, the paternal grandmother or great grandmother will have the right of custody. If they are not present, the blood sisters of the child have the right of custody if they are also not available, for taking up custody then custody is awarded to stepsisters. However, as regards stepsisters, those who are from the same mother will be given preference over those who are from the same father. Thereafter, the child’s maternal aunts and then the paternal aunts.

A mother re-marrying loses her custody

Question: I am divorced and my child borne out earlier wedlock is in my custody. If I remarry will lose custody do the child?

Answer:

If the mother marries a person who is not a mahram [marriageable kin] relative of the child, i.e. this relative is such that nikâh under the right circumstances with him is not harâm forever, then the mother forfeits the right of custody over the child. However, if the woman marries a mahram relative of this child, and this relative is such that nikâh with him is not valid (for the child), e.g. she marries the child’s paternal uncle or any other similar relative, then the mother’s right of custody remains. In the absence of the mother, if any other woman such as the child’s sister, maternal aunt, etc. marries a ghayr mahram man (i.e. to the child), the same rule will also apply. That is, the right of custody over the child no longer remains with this woman.

Taking back custody of a child

Question: Will the right to custody revert back if my marriage with a na maharam man terminates or ends for any reason?

Answer:

The right of custody over the child had been forfeited on account of the woman marrying a na mahram man to the child). Thereafter, the na maharam man divorced her or he passed away. The right of custody will revert back to this woman and the child will be handed over to her.

Taking custody away from a mother

Question; Other instances under which a custody of the child may be taken away from the mother

Answer:

a)      Demanding payment for looking after the child in the case that another non-marriageable kin can be found who would to take up the custody for free.

b)       having to leave the home frequently for employment or the like in a way that the safety of the child is compromised.

c)       Being involved in any blameworthy or sinful act that would compromise the safety of the child.

d)      If a custodian is involved in vile and sinful acts but the safety and welfare of the child is not compromised then it would be permissible to leave the child in their custody until an age where the child cannot become influenced by those acts. Thereafter, the custody has to be transferred.

e)      If the custodian (mother or grandmother, etc.) happen to be non-Muslim, the child can still be kept in their custody until a discerning age i.e. until the child cannot be influenced towards the other faith. Thereafter, the custody will be transferred. (A child is considered Muslim if any one of the parents happens to be Muslim due to the fiqhi principle: “The child follows the better of the parents in faith”)

Maintenance

 

Question: Is maintenance a right of the wife accorded recognized under law?

 

Answer:

Yes! Maintenance under Muslim law is known as “Nafqah” which means what a man spends over his family. “Nafqah” basically includes food, clothing and lodging it is also an absolute right of the wide recognized under Muslim Family Law ordinance 1961.

Question: Is a Muslim wife entitled to “Nafqah” or maintenance even if she owns property?

Answer:

A Mohameddan is bound to maintain his wife under Muslim law. Her right to maintenance is absolute.

Question: On what grounds can maintenance be denied to a Muslim wife?

Answer:

A wife is not entitled to maintenance if;

a)      she has not attained puberty

b)      she abandons conjugal domicile without any valid cause

c)       she is disobedient to reasonable commands of her husband

d)      she has eloped with somebody.

Question: How is the quantum of maintenance determined?

Answer:

It depends upon social status of the parties and economic conditions of the husband

Question: What are the entitlements a Muslim woman is eligible for after divorce from her husband?

Answer:

A woman is entitled to the following from her former husband;

a)      Reasonable and fair provision and maintenance within the Iddat period

b)      Where children born before or after the divorce are being maintained by the wife, then reasonable and fair provision and maintenance to be paid for 2 years from the respective dates of birth of such children.

c)       An amount equal to Mahr or dower agreed to be paid to her.

d)      All properties given to her before or at the time of marriage or after marriage by her relatives, friends or husband or any relative of husband or his friends.

Custody of Child in absence of female in family.

Question: If, from among the relatives of the child, no woman can be found in order to take custody of the child?

Answer:

In such a case the father will be the most eligible for custody. Thereafter, the following line of custodians will be followed; paternal grandfather, full brother, consanguine brother, full brother's son, consanguine brother's father, full brother of the father,  consanguine brother of the father,  father's full brother's son and father's consanguine brother's son. However, if the relative is a ghayr mahram and there is some fear over the safety of the child in the future, then in such a case the child will be given to someone who is reliable and trustworthy.