Accepting the request of divorce for renouncing the child’s custody

The question:

We would like - may Allah reward you - that you answer a question a sister asks. She will be very grateful to you. Indeed Allah does not fail to reward the good doers. In a nutshell, this woman after it turned out that she could no longer live with her husband for different reasons, she tried to get her divorce. She could not get it except against a condition he made in a meeting attended by witnesses. This condition states that the woman should entrust the child, who were then a fetus, to the man after two years. The woman accepted the condition apparently and out of constraint, because she did not find another means other than that. Now, she asks whether this condition is permissible in the sharia. Is she obliged to abide by it? Does she incur sin if she does not abide by it?

This is the question in sum. Glory and praise be to You, Allah. I testify that there is none worthy of worship except You, I ask your forgiveness and repent unto You.

The answer:

All praise is due to Allah, the Lord of the Worlds. Peace and blessing be upon whom Allah sent as a mercy to the Worlds, upon his Family, his Companions and his Brothers till the Day of Resurrection.

This question depends on the divergence over the nature of custody in the sharia: is it a right of the nurse or an obligation upon her? Is it a common right that the child and his mother share, or it is specific to the child? Knowing that, as a rule, children custody is for women - whether they are boys or girls – because women are more compassionate, lenient and more arranged to educate children.

The preponderant opinion in this question is that custody is a specific right to the child, because he needs someone to take care of him, protect and educate him. In fact, custody is instituted to achieve the benefit of the child. It is a right that is established in this regard, and not to achieve the benefit of the one who deserves custody. Accordingly, everyone who is more able to achieve his benefit and take care of him will be more deserving to keep him.

This being said, as custody is a specific right to the child, the mother should be imposed it if the child needs it, lest his right to protection, care and education be violated. Moreover, any condition that implies the violation of the child’s legal right to custody and deprives him of the one who is more able to achieve his benefit is vain. So if the woman asks her husband divorce on condition that she leaves her child to him, the divorce is valid, but the condition is vain. Accordingly, she is not required to abide by it, because as this is a specific right of the child, neither she nor he can annul it by a condition whatsoever, because the Messenger صلَّى الله عليه وسلَّم says: “Any condition that is not in Allah’s Book is invalid even if there were one hundred conditions.”⁽¹⁾ .i.e. it is not stated in the Quran that it is permissible or obligatory. The Messenger صلَّى الله عليه وسلَّم says: “The Muslims should abide by their conditions, except a condition that makes an illicit thing licit or makes a licit thing illicit.”⁽²⁾

However, if the woman remarries, she will not be worthier of keeping him, because she will be preoccupied with serving her husband. The child’s benefit will not be achieved by staying with her. What indicates this ruling is the following hadith: “You are worthy of keeping him, lest you remarry.”⁽³⁾ [In this case] the custody of the child will be entrusted to the one who comes after her in terms of priority; this is in order to achieve the child’s benefit, due to the impediment of remarriage. The right of custody goes back to her if the impediment disappears according to the following rules: “If the impediment disappears, the interdiction should be reapplied” and: “If the danger disappears, the interdiction should be reapplied”.

The perfect knowledge belongs to Allah عزَّ وجلَّ. Our last prayer is all praise is due to Allah, the Lord of the Worlds. Peace and blessing be upon our Prophet, his Family, his Companions and Brothers till the Day of Resurrection.

Algiers, Rabî` Al-Awwal 17^th, 1425 H

(1) Reported par Al-Bukhâri in As-Sahîh, chapter of « Commerce », concerning the prohibited conditions required in trade (hadith 2060). Muslim also reported it in As-Sahîh, chapter of « Manumission », concerning the fact that the slave should not swear allegiance except to the one who manumits him (hadith 3779); the version was as follows: “Every condition that is not in Allah’s Book…” Ibn Mâdjah also reported it in As-Sunan, chapter of « Manumission » (hadith 2521); the version was as follows: “Any condition that is not in Allah’s Book”, on the authority of `Â'isha رضي الله عنها. See Irwâ' Al-Ghalîl by Al-Albâni (5/152).

(2) Reported by At-Tirmidhi in As-Sunan, chapter of « Judgments », concerning what is reported about the way the Messenger صلَّى الله عليه وسلَّم used to reconcile between people (hadith 1352), Ad-Dâraqutni in As-Sunan (3/27) and by Al-Bayhaqi in As-Sunan Al-Kubra (6/79) on the authority of `Amr Ibn `Awf رضي الله عنه. Ibn Taymiyya said in Madjmû` Al-Fatâwa (29/147): “These chains of narration, even if one of them is weak, their different ways of narration reinforce each other”. This hadith is judged authentic by Al-Albâni in view of its ways of narration in Irwâ’ Al-Ghalîl (1303).

(3) Reported by Abu Dâwûd, chapter of « Divorce » (hadith 2276), Ad-Dâraqutni (hadith 418), Al-Hâkim (hadith 2830), Ahmad (hadith 6668) and Al-Bayhaqi (hadith 16191), on the authority of `Abd Allâh Ibn `Amr رضي الله عنهما. It is also judged authentic by Ibn Al-Mulaqqin in Al-Badr Al-Munîr (8/317), by Ibn Kathîr in Irshâd Al-Faqîh (2/250) and by Ahmad Shâkir in his recension of Al-Musnad of the imam Ahmad (10/177). It is judged Hassan (good) by Al-Albâni in Irwâ’ Al-Ghalîl (7/244) and in As-Silsila As-Sahîha (1/709).