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سنن دارمي
Darimi
من كتاب الطلاقFrom the Book of Divorce
باب في تَخْيِيرِ الصَّبِيِّ بَيْنَ أَبَوَيْهِ:Chapter: Child’s Choice Between Parents
Hadith 2330
اُردوEn
أَخْبَرَنَا أَبُو عَاصِمٍ، حَدَّثَنَا ابْنُ جُرَيْجٍ، قَالَ: أَخْبَرَنِي زِيَادُ بْنُ سَعْدٍ، عَنْ هِلَالِ بْنِ أُسَامَةَ، عَنْ أَبِي مَيْمُونَةَ سُلَيْمَانَ مَوْلًى لِأَهْلِ الْمَدِينَةِ، قَالَ: كُنْتُ عِنْدَ أَبِي هُرَيْرَةَ فَجَاءَتْهُ امْرَأَةٌ، فَقَالَتْ: إِنَّ زَوْجِي يُرِيدُ أَنْ يَذْهَبَ بِوَلَدِي، فَقَالَ أَبُو هُرَيْرَةَ: كُنْتُ عِنْدَ رَسُولِ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ إِذْ جَاءَتْهُ امْرَأَةٌ، فَقَالَتْ: إِنَّ زَوْجِي يُرِيدُ أَنْ يَذْهَبَ بِوَلَدِي أَوْ بِابْنِي وَقَدْ نَفَعَنِي وَسَقَانِي مِنْ بِئْرِ أَبِي عِنَبَةَ، فَقَالَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ: اسْتَهِمَا أَوْ قَالَ: تَسَاهَمَا أَبُو عَاصِمٍ الشَّاكُّ، فَجَاءَ زَوْجُهَا، فَقَالَ: مَنْ يُخَاصِمُنِي فِي وَلَدِي أَوْ فِي ابْنِي ؟، فَقَالَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ: "يَا غُلَامُ، هَذَا أَبُوكَ وَهَذِهِ أُمُّكَ، فَخُذْ بِيَدِ أَيِّهِمَا شِئْتَ" . وَقَدْ قَالَ أَبُو عَاصِمٍ: "فَاتْبَعْ أَيَّهُمَا شِئْتَ"، فَأَخَذَ بِيَدِ أُمِّهِ فَانْطَلَقَتْ بِهِ.
Abu Maimunah Sulaiman, the servant of the people of Madinah, narrates that I was sitting with Sayyiduna Abu Hurairah (may Allah be pleased with him) when a woman came to him and said, "My husband wants to take my child away." Sayyiduna Abu Hurairah (may Allah be pleased with him) said: I was present with the Messenger of Allah (peace and blessings be upon him) when a woman came to him and said, "My husband wants to take away my child or my son who serves me and brings me water from the well of Abu Anbah." The Messenger of Allah (peace and blessings be upon him) said: "You both cast lots," «استهما» he said, or «تساهما» he said, Abu Asim was uncertain about this (the meaning of both words is the same). Then the woman's husband came and said, "Who will dispute with me regarding my child or my son?" The Messenger of Allah (peace and blessings be upon him) said (to the child): "Son, this is your father and this is your mother, take the hand of whomever you wish to stay with."
And Asim said: Go with whichever of the two you wish, so the boy took his mother's hand and she took him away.
And Asim said: Go with whichever of the two you wish, so the boy took his mother's hand and she took him away.
Brief Explanation
(Commentary on Hadith 2329)
From this hadith, it is understood that if separation occurs between husband and wife, the child will have the choice to stay with either the mother or the father, whichever he/she prefers.
This is the position of Imam Shafi‘i rahimahullah.
According to Imam Abu Hanifah rahimahullah, a young child will stay with the mother, and when the child is able to eat, drink, and clean himself/herself (perform istinja) independently, then the child will stay with the father, i.e., the child does not have a choice.
Furthermore, this hadith also proves that if there is a dispute between husband and wife regarding the children, then lots should be drawn; the children will stay with the one whose name is drawn. However, giving the child the choice is preferable, as most ahadith indicate this.
In Arabic, this is called the right of custody (haqq al-hadanah).
In the Saudi court, the law is that if separation occurs between husband and wife, the young boy or girl will remain with the mother until the age of discernment (sin al-tamyiz), i.e., up to seven years, provided that the woman does not remarry. In the case of a second marriage, the boy or girl will be transferred to the father.
And Allah knows best.
From this hadith, it is understood that if separation occurs between husband and wife, the child will have the choice to stay with either the mother or the father, whichever he/she prefers.
This is the position of Imam Shafi‘i rahimahullah.
According to Imam Abu Hanifah rahimahullah, a young child will stay with the mother, and when the child is able to eat, drink, and clean himself/herself (perform istinja) independently, then the child will stay with the father, i.e., the child does not have a choice.
Furthermore, this hadith also proves that if there is a dispute between husband and wife regarding the children, then lots should be drawn; the children will stay with the one whose name is drawn. However, giving the child the choice is preferable, as most ahadith indicate this.
In Arabic, this is called the right of custody (haqq al-hadanah).
In the Saudi court, the law is that if separation occurs between husband and wife, the young boy or girl will remain with the mother until the age of discernment (sin al-tamyiz), i.e., up to seven years, provided that the woman does not remarry. In the case of a second marriage, the boy or girl will be transferred to the father.
And Allah knows best.
