طلاق و حضانت فرزند از نظر فقه شیعه

طلاق و حضانت فرزند از نظر فقه شیعه دوشنبه ۱۶ اسفند ۱۳۹۵ 8:12

Abstract:

In this paper, I have tried to deal with the above topic according to the jurisprudence
of the Shi'ite school of thought. Before going into details, I have mentioned some
thing about the importance of the marriage and detesting of divorce in Islam. Then I
have tried to give a proper definition for the 'custody'. It will be followed by an
answer to the question that if the custody is a'right' or'duty'? Then I have discussed
the custody of baby, boy and girl in the normal case of living of the parents with each
other. The argument has been continued with the case of divorce, which is the axis of
the discussion. The main detailed sources and reasons have been studied in depth. The
moral duties of the divorced parents will end the paper.

*************

Vocabularies and Idioms used in the paper:
Shi'ite: Followers of the twelve Imams who were appointed by the prophet of Islam.

Sunnite: Muslims who followed the rulers they themselves appointed.

Fiqh: Jurisprudence in which, all duties of Muslims based on the holy Qur'an,
narrations, consensus and reason are discussed.

Haclhanat: Custody.

Talaq: Divorce.

Halal & Haram: Lawful & Unlawful.

Shari'ah: Religious laws.

Fatwa: Verdict of a jurist scholar.

Haqq: Right.

Taklif: Reli gious duties.

Morsalah: A narration in which the last narrator who has narrated from Imam al-
Ma'soum is not named.

Movathagh: Reliable or valid narrator.

(s.a.): abbreviation for "May the blessing of God be upon him".

(a.s): abbreviation for "Peace be upon him".

In the Name of God

Divorce and Child Custody
According to Shi'ite Jurisprudence

by: Mohammad B. Ansari

The child custody has always been and still is an impoftant legal topic in different
societies. It is not axis of arguments only in the case of divorce, but also in other cases
such as the case of living of the parents with each other and the case of the parents'
death or one of them etc. There are many laws and regulations regarding the child
custody both in Islam and in other religions or countries' civil laws as well.
Here in this paper I will deal with the issue from the viewpoints of Sftl,i/e Islam and
the case of divorce, though I will mention few of ideas from viewpoints of Sunnite
Islam and civil laws accordingly.
Before going into details of the subject, I will mention the Islamic approach on the
issue of marriage and divorce which are the most important affairs in the whole
lifetime of every individual of the human beings.
Mariage in Islam is the foundation for training of righteous and competent
individuals for the society. Both husband and wife have specific rights as well as
significant responsibilities. According to the Islamic teachings, a good and competent
wife is one who prepares the conditions for her husband to do his responsibilities in
the society and train their children in the best way. Likewise, a good husband is one
who has great consideration for his wife and supplies her needs and comfort.
Islam has laid significant emphasis on the wife's rights. There are many formulas in
Islamic sources in this regards. For instance, a narration from prophet of Islam (s.a.),
in which he advises his successor Ali (a.s.), says:
"O Ali! When your bride comes to you, do welcome her by taking off her shoes when
she is sitting down, wash her feet and pour water on the courtyard of the house. . . "
I
According to the Islamic jurisprudence, a husband has no right to impose his wife to
do the housework unless she herself does that voluntarily. She, however, is permitted
to demand wage for that or ask her husband to employ a house cleaner to do that. She
also is permitted to demand payment for lactation of their baby.
There are many other rules and regulations regarding the rights of the married couple
that should be discussed in its place. Nevertheless, it is important to mention that all
these rights are final rules for judgment, when there may appear some problems in
their way of life. According to the Islamic moral teachings, the love between the
married couple is the basic corner stone of the family life. As far as the issue of love
is concerned, there is equal for the married couple being in bed or in the full-event
field of life.
Actually, this is the real reason of detesting of divorce in Islam. Divorce is titled as
"Abghadh-ul-Halaal in Islam i.e. that is most detesting lawful issue in Islam. It is
narrated from Imam Ja'far al-Sadeq (a.s.) that God, All-Mighty and All-Majestic, likes
a home in which occurs marriage and wedding, hates a home in which occurs divorce
and He considers nothing most detesting as divorce.2 The holy Qur'an, discussing on
the differences of married couple says: "And if you fear a split between the two of
them, then appoint an arbiter from his relatives and an arbiter from her relatives, if
they desire reconcilement, Allah shall reconcile them.3
It is, however, perceptible that when the reconcilement is impossible, then it is
permitted to choose divorce as the final option. According to the rules and regulations
of divorce in Islam, the husband is not allowed to impose a critical and intolerable
situation on the family life. There should be "either an honorable retention or a kindly
release".4
I would like mention here that the rules and regulations of divorce in Shi'ite
perspective are very progressive and helpful. Sunnite Islam is facing many problems
in this regard. Dislike Christianity according which divorce is not been allowed, in
Sunnite Islam divorce is very easy and lawful in any case. Man can divorce his wife
for every slightest reason.' Therefore, the Islamic Shi'ite rules in this regard place in a
middle way.
Education and training of the children, which are main goal of the marriage, are very
important in Islam. A married couple should try to train and build up good and proper
units for the society. This is the most important responsibility of the parents before
God, the Ahnighty, and the society as well. When the children are not been good
trained, they will be like inferior quality construction materials in a building.
There are many detailed guidelines regarding education and training of the children in
Islam. Based on these guidelines, there have been compiled many works on this
subject. The prophet of Islam (s.a.) said, "Respect your children and train them well".6
He prayed saying:, "May God bless a person who by treating indulgently with his
child, being fond of him and training and educating him well, help him to be a
benevolent to his father.T
To this extent of emphasis regarding training of the children in Islam shows the
importance of custody. It is a great responsibility to the both married couples. When
they are living with each other, they may share the responsibility, but when divorce
occurs, the rights ofthe children should not be neglected at all.

Definition:

Now, we should go to the details of the above titled discussion. First, we should give
a clarified definition for the custody. Custody, in Arabic " Hadhanat" or " Hedhanat",
according to deferent dictionaries is the act, duty or right ofcaring for child physically
and spiritually by a person who nominated by the law or Shari'ah. Spiritually here
includes training and educating as well.
According to Shi'ite Fiqh Qurisprudence) Hadhanat is guardianship of a determined
person on a child to safeguard the interests of him both physically and spiritually.
In accord with the Iranian civil laws that has been derived from Shi'itejurisprudence,
Hadhanat is taking care and training of a child in order to safeguard his health, and
training and considering his present and future necessities according to the situation
and position of his parents.
In another definition, we read that Hadhanat is an authority that law has given to the
parents in order to safeguard and train their child.
From all these definitions, we understand that:
a. Custody or Hadhanat rs an act, right or duty.
b. It, however, is given to a person by law or Shari'ah and not by any other
source.
c. That is guardianship or authority for taking possession of the affairs of a
child.
d. Taking possession of the affair of the child must be to his interest.
e. Guardianship and authority must cover all dimensions of the child's
both physical and spiritual needs,

'Right' or'Duty'?

Now, what is the custody legally? Is it a right or duty? we know that'right' or in
Arabic 'Haqq'is the polit^ical, social, etc. advantage to which someone has a just
claim, morally or in law.8 It means that one may transfer his 'right' to somebody else,
but duty or in Arabic'Taklif is some thing that must fulfill by a person himself.
According to the shi'ite ancient jurists like Shaikh al-Tusi, d. 460 A.H., etc., custody
is a'right'. He says, "when a wife remarried, her'right' of the custody will be
removed". Then he continues, "Abuhanifah, Malek and Shafe'i also have the same
opinion, but al-Hasan al-Basri is of the opinion that her'right'will not be removed".e
He uses the word of 'right' in his other works as well.l0
Shaikh Mohammad Hasan al-Najafi, d.1266 A.H., the great shi,ite scholar and
researcher says that though many of the jurist scholars have used the word of ,right' in
this connection, we did not find this argument - i.e. is the custody ,right,or'duty' -in
their works directly. Then he mentions that Sayed Ali al-Tabatab,I, d. 1231 A.H., in
his work Riadh al-Masa'el try to prove that the custody is a 'right', but he fails to do so
because his argumentation does not lead to his aim and intention. Al-Najafi, however,
leave this argument without any conclusion.ll
I am of the opinion that the custody is 'right'because this word used in the narrations,
which are the main source for this issue and accordingly we see the same word in the
ancient works of Shi'itejurist scholars. In spite of that, as the neglect of this 'right'
may lead to spoiling of the interest of child, Shari'ah and law have compelled the
parents to take care of him. Therefore, it is a kind of 'right' that cannot be removed or
deprived, unless one of the parents misses his/her competency.
Girl and Boy Custody
Now, we should know that in normal cases, i.e. in the case of the living of the married
couple with each other, the original right of custody belongs to mother from child's
birth (both boy and girl) to the end of his/her two-year old. This is called in Shari,ah
the period of lactation, i.e. period of time during which a mother produces milk for
herbaby. The so.urces of this rule are consensus of the Shi'itejurist scholars andthe
valid narrations.l2
The custody of the mother, however, will continue for girls up to seven-year old,
while it will belong to the father only for boys from two-year old up to seven-year
old. The child after being seven-year old, however, can take decision to be under the
custody of her/his mother or father.
These details base on the well-known sayings of the Shi'itejurist scholars and valid
narrations.l3 The article No. 1169 of the Iranian Civil Law in which expressed the
same, derived from these sources.
It should be mentioned that there is another opinion of some jurist scholars according
which the end of the age for custody is 9-year old. They are Shaikh al-Mofid d,.413
A.H., Abu Ya'la al-Sallar d. 463 A-H. and Qadhi ibn al-Barrage d. 481 A.H.
According to Jawaher al-Kalam there is not any reason for this opinion.la May be
they have based their opinion on the age of puberty, but it is clear that the puberty is
different in boys and girls. That age considered for girls'puberty, while thi age of
puberty for boys is 15-year old.

The Case of Divorce:

in the case of divorce, the rules of the custody will be the same as the mentioned for
both father and mother. Therefore, it is the mother's right who live separately, to keep
the child with her, two years for boy and girl, and five years more for girl. Father's
right is the custody of the boy after he is 2-year old to 7-year old. In this age, each of
the boy and girl can choose their mother or father to live with. The custody right of a
mentally retarded boy, irrespective of his age, also belongs to the mother
The father, however, is obliged to provide both boy and girl expenses, even during the
period of their living with their divorced mother. The sources for these rules are the
holy Qur'an, narrations and the consensus of the shi,itejurist scholars.ls
There is not any doubt or differences of viewpoints in the mentioned rules, but there is
a condition for the mother for validity of her right of custody. This condition is that
she does not marry during the period of observing of her right of custody; otherwise,
her right will remove and transfer to the father.
The sources for this rule are consensus and the narrations. There is difference of
opinion between Shi'ite and Sunite jurist scholars and there is disagreement between
the evidence on the two sides. Al-Shaikh a1-Tusi writes in his book al-Kilaf,l6 ,'When
the mother get married, her right of the custody will be removed". He continues, "The
same believed Abu-Hanifah, Malik and al-Shafe'i, but al-Hasan al-Basri believed that
her right will not be removed by marrying". Then he says, "Our source and reason is
consensus (of Shi'ite scholars) and their narrations". Here he did not mention the holy
Qur'an in which, mother considered responsible for the custody of the baby during the
period of 2-year-lactatingt7,though it mentioned in one of the narrationsl8.
Regarding the narrations, al-Shaikh al-Tusi does not mention Shi'ite narrations, rather
he mentions two naffations from Sunnite sources.
The first one is a namation from 'Amr bin Sho'aib in which the prophet finish
his saying as, "You (mother) are preferred for the custody, while yo, huu. not got
married".
The second is a narration from Abu Hurairah according which the prophet said,
"Mother is preferred for custody of her child, while she has not got married".
Al-Shaikh al-Tusi, however, does not differ between 2-year-old baby and 7-year-old
child in this issue.
Now, we should go to the issue from viewpoint of the Shi'ite narrations. These
narrations quoted in traditional Shi'ite sources. Al-Shaikh Hurr al-Ameli collected
seven narrations, in this regard, in his works Was'el al-Shi'ah.le The most explicit of
them is al-Menghari's narration.
Al-Shaikh Mohammad Hasan al-Najafi reasoning by consensus and the same
naruation says, "When the mother get married her right of custody will be removed in
both cases of boy and girl, and the father is preferred for that".20
Going into details of the argument, we would say that this narration of al-Menghari is
not valid because it is a 'Morsalah' narration in which the last narrator who has
narrated from Imam al-Ma'soum is not named. The chain of the narrators of this
narration, according to wasa'el al-Shiah2l is: Mohammad bin ya'ghoub al-Kulaini,
from Ali bin Ibrahim, from Ali bib Mohammad al-Ghasani, from bhasem bin
Mohammad, from al-Menghari, from an unnamed person narrated who said, Abu
Abdillah (Imam Ja'far al-Sadegh, the 6th. Imam of shi'itey was asked about a person
who divorced his wife when they had a child: which one of them is preferred for
(custody) of the child? The Imam said, "The mother is preferred wtrile she has not got
married.
Al-Shaikh al-Sadugh in his work Man la Yahdhoroho al-Faghih22 distinguished the
last narrator and adds like this, 'Al-Menghari, from Hafs birrGhiath,, buihe adds, ,or
somebody else'. Anyhow, the problem is that this kind of distinguishing, however,
cannot bring validity for the narration and it will remain Mursalah. Moieover, al-
Menghari himself and Hafs bin Ghiath as well, are not reliable narrators because thev
both are Sunnite, though they may be Movathagh (valid). Just as Ghasem bin
Mohammad is also not reliable person, though he was Shi,ite.
Therefore, the mentioned narration cannot be considered as a reason for the issue. The
other seven narrations in Was'el al-Shi'ah, are different from the viewpoint of their
contents. According to some of them, the divorced mother is preferred for custody
during the period of lactating. Some of them preferred the same in connection with
girl up to 7-year-old.
Despite all these narrations, Fatawa (verdicts) of the Shi'itejurist scholars are as the
same with Shaikh al-Tusi's one. Unlike the Sunnite jurist scholars, there is not single
jurist scholar who believes something else. Therefore, the main source for this Fatwa
is consensus of the Shi'itejurist scholars as al-Shaikh al-Tusi expressed. The article
No. 1170 from the Iranian civil law based on this Fatwa as weil.
Now, the question here, regarding this issue is that, if the mother is divorced after the
second marriage, will her right of the custody for her child return to her or not? Al-
Shaikh al-Tusi says, "when her (second) husband divorces her, her right of the
custody will return to her again. He continues, "The same is believed by Abu Hanifah
and al-Shafe'i, but Malek is of the opinion that her right will not returntecause it was
canceled after her (second) marriage. Then he says," Our reason is that the prophet (in
the mentioned narration) linked removing of her right to the (second) maniage.
Therefore, when the marriage is abounded, the right of the custody will returi,'.23
This issue, however, has not been discussed in most of the textbooks and there is not
any specified narration as a source for that. The reason given for that is only rational
one. Regarding the issue Imam Khomeini says, "If the second husband divorces her,
may be her right of the custody return, but to observe prudence it is preferable to
compromise".24

Moral duties:

As regard to the duties of the parents during the observing of custody right of the
children after divorce, there are some moral duties for both father and mlother. There
are many narrations in the Shi'ite sources about the rights of the parents towards their
children andvice versa. Some of these rights are in Resalah al-Huqug (Treatise on
Rights) which is quoted from Imam al-Sajjad, d. 94 A.H., the 4rh. Imam of shi,ite.2s
Al-Shaikh Mohammad Hasan al-Nahafi after explanation of the jurist rules of the
custody issue says, "Well, it is worthy of and advised that the father should not
prevent his child from visiting his/her divorced mother and being with her. Just as, the
mother should not prevent her child from visiting his/her father and being with him
because it is sever of the bond of family's relationship (Qat'o al-Rahem) ir6.t causes
damages to the family's relationship. He continues, "Therefore, if the child is male,
lets him free go to his mother, and if it is female, lets her do so, when there is not any
problem for her in qoing out of home, otherwise the mother should go along with
irer".26

The End

Footnotes

1- shaikh al-Saduq, d. 381 A.H., in his works Al-Amaali,p.566,Ilal al-sharaye,,vol.2,p.

514 and Man la Yahdurhu al-Faqih, vol. 3, p.551. Also Shaikh Hurr al-Ameli, d. l l04 A.H.,

Wasa'el al-Shi'ah, vol. 20, pp. 91 8.249.

2 - Al-Kolaini, d.329 A.H., AI-Kafi, vol. 6, p.54.

3- Surah al-Nisa', vers 35.

4- The holy Qur'an,2,229.

5- As an explanation for this claim, I would like to mention one of myself memories. In

September 1998 when I attended a seminar in London,l met one of the Egyptian great

personalities named Shaikh Demertash Al-Iqaali. He was chief of the Egyptian court of

appeal and the ex-member of the parliament.

He said that as divorce in Christianity is not legal, some of the Egyptian Christians - named

Copts * refer to me for divorce and I help them according to the Islamic laws. One day there

was a discussion between one of them and me. He said that I am not agreeing with thi issue

of divorce in both Islam and Christianity. In Christianity, it is not been allowed at all, while in

lslam it is allowed easily for every slightest reason. There is no need to witnesses and after

saying, "I am divorcing you three times" she will be divorced and in this case, the husband is

not been allowed to remarriage with her unless after somebody marry with her and divorce

her. Then her first husband can remarry with her. These rules are against women rights.

Demertash said that I was confused and could not give him a proper answer. I was confused

for a long time until I referred to the Shi'ite sources. I came to know that the rules of divorce

in Shi'ite jurisprudence are really reasonable and helpful. Divorce is not been allowed easily

and three-time divorce in one time is not valid as well.

When I was busy writing this paper, there was news and views about the opinion of Dr.

Rowan Williams, the 57-year-old senior Archbishop of the Canterbury and the religious head

of the Anglican church of England, who expressed his Idea about using of the Islamic Shariah

in the UK. He, in his foundation lecture at the Royal Court of Justice, said the adoption of

some elements of Islamic Shari'ah law in the UK "seems unavoidable". Although iris

suggestiotl faced fierce oppositions, this indicates that Islami c shari'ah laws can solve many

legal problems of nowadays.

6- Al-Mirza al-Nouri, d. 1320 A.H., Mustadrak al-Wasa,el, vol.2, p. 625.

7- Ibid, Yol.2, p. 626.

8- Longman Active Study Dictionary of English, published 19g4.

9- Al-Shaikh al-Tusi, d. 460 A.H., Kitab al-khelaf,vol. 5, p.132.

10- See e.g., al-Mabsut,vol.6, p. 38.

11- Moharnmad Hasan al-Najafi, d. 1266 A.H., Jawaher al-Kalam. vol. 3 1, p.2g4.

12- Ref. Shaikh Hurr al-Ameli, d.1104 A.H., wasae'l al-shi,ah, vol. 15, chapter gl.

13- rbid.

14- Al-najafi , Jawaher al-Kalam, vol. 3 l, p. 291 .

15- For the sources refer to: Beside the holy eur'an, 2: 233,Ibid., vo l. 3 1 , pp. 2go-2g2, Al_

Shaikh Hurr al-Ameli, Was'el al-Shi'ah, rol. 15, pp. DO-t 92 etc.

16- Al-Shaikh al-Tusi, al-Khilaf, vol. 5, p.132, issue No. 3g.

l7- Holy Qur'an, 2:233.

1B- Al-Shaikh Hurr al-Ameli, Was'el al-Shi,ah, vol. 15, p. 190.

19- Ibid., vol. 15, pp.190-192.

20- Al-Najafr, Jawaher al-Kalam, vol. 31 , p.292.

21- Al-Shaikh Hurr al-Ameli, Was'el al-Shi,ah, vol. 15, p. 191.

22- Al-Shaikh al-Sadugh , Man la Yahdhoroho al-faghih, vol. 3, p. 27 5.

23- Al-Shaikh al-Tusi, al-Khilaf vol. 5, p.132, issue No. 39.

24-lmam Khomeni, d. 1409 A.H.(: 19s8 A.D.) Tahrir al-wasilah,vol.3, p.44g. First

edition printed in Najaf, Iraq.

25- This Resalah or treatise, which contains 50 rights regarding human beings is quoted

iyTyhaf al-ughul, ( pp. 184-tg5,5th edition printed in Beirut, LJanon), compiied uy al-

Shaikh al-Hasan bin Ali bin Sho'bah al-Harrani (who was one of al-Shaikh al-Mofia(-A. +t:

A.H.- coevals). Many Shi'ite scholars have compiled books as explanation for this Resalah

one of them is:'Sharhu Resalah al- Huquq', compiled by: Hasan al-Sayed Alial-Ghobbanchi,

printed by Esmai'lian's publication in Qum, Iran.

26- Al-Najaft, Jawaher al-Kalam,vol. 3 1, p. 292.

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