سنن ابي داود
Abu Dawud
كتاب تفريع أبواب الطلاقDivorce (Kitab Al-Talaq)
باب مَنْ أَحَقُّ بِالْوَلَدِChapter: Who Has More Right To Take The Child?
Hadith 2278
اُردوEn
حَدَّثَنَا الْعَبَّاسُ بْنُ عَبْدِ الْعَظِيمِ ، حَدَّثَنَا عَبْدُ الْمَلِكِ بْنُ عَمْرٍو ، حَدَّثَنَا عَبْدُ الْعَزِيزِ بْنُ مُحَمَّدٍ ، عَنْ يَزِيدَ بْنِ الْهَادِ ، عَنْ مُحَمَّدِ بْنِ إِبْرَاهِيمَ ، عَنْ نَافِعِ بْنِ عُجَيْرٍ ، عَنْ أَبِيهِ ، عَنْ عَلِيٍّ رَضِيَ اللَّهُ عَنْهُ ، قَالَ : خَرَجَ زَيْدُ بْنُ حَارِثَةَ إِلَى مَكَّةَ فَقَدِمَ بِابْنَةِ حَمْزَةَ ، فَقَالَ جَعْفَرٌ أَنَا آخُذُهَا ، أَنَا أَحَقُّ بِهَا ابْنَةُ عَمِّي وَعِنْدِي خَالَتُهَا وَإِنَّمَا الْخَالَةُ أُمٌّ ، فَقَالَ عَلِيٌّ أَنَا أَحَقُّ بِهَا ابْنَةُ عَمِّي وَعِنْدِي ابْنَةُ رَسُولِ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ وَهِيَ أَحَقُّ بِهَا ، فَقَالَ زَيْدٌ : أَنَا أَحَقُّ بِهَا أَنَا خَرَجْتُ إِلَيْهَا وَسَافَرْتُ وَقَدِمْتُ بِهَا ، فَخَرَجَ النَّبِيُّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ ، فَذَكَرَ حَدِيثًا ، قَالَ : " وَأَمَّا الْجَارِيَةُ ، فَأَقْضِي بِهَا لِجَعْفَرٍ تَكُونُ مَعَ خَالَتِهَا وَإِنَّمَا الْخَالَةُ أُمٌّ " .
Narrated Ali ibn Abu Talib: Zayd ibn Harithah went out to Makkah and brought the daughter of Hamzah with him. Then Jafar said: I shall take her; I have more right to her; she is my uncle's daughter and her maternal aunt is my wife; the maternal aunt is like mother. Ali said: I am more entitled to take her. She is my uncle's daughter. The daughter of the Messenger of Allah ﷺ is my wife, and she has more right to her. Zayd said: I have more right to her. I went out and journeyed to her, and brought her with me. The Prophet ﷺ came out. The narrator mentioned the rest of the tradition. He (i. e. the Prophet) said: As for the girl, I decided in favour of Jafar. She will live with her maternal aunt. The maternal aunt is like mother.
Related hadith on this topic
Explanation & Benefits
Shaykh Umar Farooq Saeedi
Benefits and Issues:
In the care and upbringing of a child, priority and precedence is given to the mother, as has been mentioned in the above hadith. After her comes the maternal aunt, then the paternal relatives (ʿaṣabāt).
Imam Ibn Taymiyyah and Ibn Qayyim rahimahullah state that in this precedence and order, it is extremely necessary to consider the welfare of the child in both his present and future.
If there is a clear fear of tribulation (fitnah) in this matter, then it becomes obligatory to change the order, because, for example, if the child is given the choice, it is quite possible that due to lack of maturity of intellect, he may not be able to make the correct decision.
And this right is not like the right of inheritance, in which mere kinship is the basis; rather, this is the right of guardianship (wilayah), as is the case in marriage (nikah) and financial matters, and in these, welfare (maṣlaḥah) is given preference, not mere kinship.
Similarly, if on one side there is clear injustice in the care and upbringing of the child, and there is no arrangement for the protection of his creed, education and upbringing, and morals and actions, while on the other side these matters are taken care of, then preference will be given to the latter.
(Taysir al-ʿAllām Sharh ʿUmdat al-Aḥkām, Volume Two, Hadith: 332.
Nayl al-Awṭār, Volume Six, Chapter: Who Has More Right to the Guardianship of the Child)
In the care and upbringing of a child, priority and precedence is given to the mother, as has been mentioned in the above hadith. After her comes the maternal aunt, then the paternal relatives (ʿaṣabāt).
Imam Ibn Taymiyyah and Ibn Qayyim rahimahullah state that in this precedence and order, it is extremely necessary to consider the welfare of the child in both his present and future.
If there is a clear fear of tribulation (fitnah) in this matter, then it becomes obligatory to change the order, because, for example, if the child is given the choice, it is quite possible that due to lack of maturity of intellect, he may not be able to make the correct decision.
And this right is not like the right of inheritance, in which mere kinship is the basis; rather, this is the right of guardianship (wilayah), as is the case in marriage (nikah) and financial matters, and in these, welfare (maṣlaḥah) is given preference, not mere kinship.
Similarly, if on one side there is clear injustice in the care and upbringing of the child, and there is no arrangement for the protection of his creed, education and upbringing, and morals and actions, while on the other side these matters are taken care of, then preference will be given to the latter.
(Taysir al-ʿAllām Sharh ʿUmdat al-Aḥkām, Volume Two, Hadith: 332.
Nayl al-Awṭār, Volume Six, Chapter: Who Has More Right to the Guardianship of the Child)
Source: Sunan Abu Dawood – Commentary by Shaykh Umar Farooq Saeedi, Page: 2278
Maulana Dawood Raz
Hadith Commentary:
Hazrat Hamzah radi Allahu anhu was the foster brother of the Prophet sallallahu alayhi wa sallam.
That is why his daughter addressed the Prophet sallallahu alayhi wa sallam as “uncle, uncle.”
Hazrat Zayd radi Allahu anhu referred to this girl as his niece because the Prophet sallallahu alayhi wa sallam had made Hazrat Zayd radi Allahu anhu the brother of Hazrat Hamzah radi Allahu anhu.
The Prophet sallallahu alayhi wa sallam addressed Zayd radi Allahu anhu with the word “mawlana.” Mawla refers to a slave whom the master has set free.
The Prophet sallallahu alayhi wa sallam freed Hazrat Zayd and made him his son.
When the Prophet sallallahu alayhi wa sallam, out of justice, gave this girl to Hazrat Ja’far radi Allahu anhu, he narrated this hadith to please the hearts of the others.
From this hadith, a great virtue of Hazrat Ali radi Allahu anhu is derived.
The Prophet sallallahu alayhi wa sallam said, “I am yours, and you are mine.”
The meaning is that both of us are descendants of the same grandfather and share the same blood.
Hazrat Ali radi Allahu anhu’s refusal to erase and write your blessed name was not out of disobedience, but due to the fervor of his faith, he could not bring himself to erase your Prophethood, which is entirely true and correct, with his own hand.
Hazrat Ali radi Allahu anhu also understood that your command was not obligatory (wujub).
The chapter heading is derived from this, as in the heading only “so-and-so son of so-and-so” is written, and a longer genealogy or family lineage is not required.
In this narration, the mention of the Prophet sallallahu alayhi wa sallam writing himself is to be understood as a miracle; otherwise, in reality, the Prophet was unlettered (ummi) and had no connection with reading or writing.
Then Allah enriched him with the knowledge of the first and the last.
Those who deny the unlettered (ummi) status of the Prophet sallallahu alayhi wa sallam are mistaken.
Being unlettered (ummi) is also one of his miracles.
Hazrat Hamzah radi Allahu anhu was the foster brother of the Prophet sallallahu alayhi wa sallam.
That is why his daughter addressed the Prophet sallallahu alayhi wa sallam as “uncle, uncle.”
Hazrat Zayd radi Allahu anhu referred to this girl as his niece because the Prophet sallallahu alayhi wa sallam had made Hazrat Zayd radi Allahu anhu the brother of Hazrat Hamzah radi Allahu anhu.
The Prophet sallallahu alayhi wa sallam addressed Zayd radi Allahu anhu with the word “mawlana.” Mawla refers to a slave whom the master has set free.
The Prophet sallallahu alayhi wa sallam freed Hazrat Zayd and made him his son.
When the Prophet sallallahu alayhi wa sallam, out of justice, gave this girl to Hazrat Ja’far radi Allahu anhu, he narrated this hadith to please the hearts of the others.
From this hadith, a great virtue of Hazrat Ali radi Allahu anhu is derived.
The Prophet sallallahu alayhi wa sallam said, “I am yours, and you are mine.”
The meaning is that both of us are descendants of the same grandfather and share the same blood.
Hazrat Ali radi Allahu anhu’s refusal to erase and write your blessed name was not out of disobedience, but due to the fervor of his faith, he could not bring himself to erase your Prophethood, which is entirely true and correct, with his own hand.
Hazrat Ali radi Allahu anhu also understood that your command was not obligatory (wujub).
The chapter heading is derived from this, as in the heading only “so-and-so son of so-and-so” is written, and a longer genealogy or family lineage is not required.
In this narration, the mention of the Prophet sallallahu alayhi wa sallam writing himself is to be understood as a miracle; otherwise, in reality, the Prophet was unlettered (ummi) and had no connection with reading or writing.
Then Allah enriched him with the knowledge of the first and the last.
Those who deny the unlettered (ummi) status of the Prophet sallallahu alayhi wa sallam are mistaken.
Being unlettered (ummi) is also one of his miracles.
Source: Sahih Bukhari: Commentary by Maulana Dawood Raz, Page: 2699
Shaykh Abdul Sattar al-Hammad
Hadith Commentary:
(1)
The purpose of Imam Bukhari rahimahullah is that mentioning lineage and similar details in a peace document is for the sake of specification and removal of ambiguity. If this objective is achieved without such mention, then there is no need to state the lineage, as in accordance with this hadith, only "Muhammad bin Abdullah" was written in the peace agreement. The jurists have written: In such documents, mentioning the parents, lineage, and tribe, etc., is necessary in case of confusion; otherwise, it is not obligatory to write them.
(2)
According to this narration, Ali radi Allahu anhu did not disobey the command of the Messenger of Allah sallallahu alayhi wa sallam; rather, due to the fervor of his faith, he could not bring himself to erase with his own hand the Messenger’s prophethood, which was entirely true and correct. Ali radi Allahu anhu understood from the context that this instruction was not given as an obligation; otherwise, it would not have been possible for him not to comply.
(3)
It should be clear that, on the occasion of the Treaty of Hudaybiyyah, the Messenger of Allah sallallahu alayhi wa sallam, considering the greater benefit, accepted several conditions of the polytheists of Makkah. The following year, the polytheists themselves had to bear the consequences of these erroneous conditions. We will explain this in detail later.
(1)
The purpose of Imam Bukhari rahimahullah is that mentioning lineage and similar details in a peace document is for the sake of specification and removal of ambiguity. If this objective is achieved without such mention, then there is no need to state the lineage, as in accordance with this hadith, only "Muhammad bin Abdullah" was written in the peace agreement. The jurists have written: In such documents, mentioning the parents, lineage, and tribe, etc., is necessary in case of confusion; otherwise, it is not obligatory to write them.
(2)
According to this narration, Ali radi Allahu anhu did not disobey the command of the Messenger of Allah sallallahu alayhi wa sallam; rather, due to the fervor of his faith, he could not bring himself to erase with his own hand the Messenger’s prophethood, which was entirely true and correct. Ali radi Allahu anhu understood from the context that this instruction was not given as an obligation; otherwise, it would not have been possible for him not to comply.
(3)
It should be clear that, on the occasion of the Treaty of Hudaybiyyah, the Messenger of Allah sallallahu alayhi wa sallam, considering the greater benefit, accepted several conditions of the polytheists of Makkah. The following year, the polytheists themselves had to bear the consequences of these erroneous conditions. We will explain this in detail later.
Source: Hidayat al-Qari: Commentary on Sahih Bukhari, Urdu, Page: 2699
