The child’s most deserving guardian is his mother until she remarries.
Linguistic explanation: The word “Hadanah” is derived from the root حَضَنَ (Nasr) and means “to nurture and hold in the lap.” The form Ihtadana (iftiaal) also carries the same meaning. الحضن means “lap.” الْحَاضِنَةُ means “a woman who nurtures the child, i.e., a wet nurse.”
[Al-Qamus Al-Muheet: p. 1536, Al-Munjid: p. 164, Al-Sihah: 2102/5]
Legal definition: To protect someone who is not capable of managing their affairs, upbringing, and protection from harmful and dangerous things (this is Hadanah).
[Sabil al-Salam: 1561/3]
It is narrated from Hazrat Abdullah bin Amr (RA) that a woman came to the Prophet Muhammad (PBUH) and said: O Messenger of Allah! This is my son; my womb was his vessel, my breast was his drinking place, and my lap was his resting place. His father has divorced me and now wants to take this child away from me. The Prophet (PBUH) said:
أنت أحق به ما لم تنكحي
“Until you marry again, you have the greater right over him.”
[Hasan: Sahih Abu Dawood: 1991, Kitab al-Talaq: Chapter on who has the right over the child, Abu Dawood: 2276, Darqutni: 305/3, Hakim: 207/2, Bayhaqi: 4/8-5; Imam Hakim and Imam Dhahabi declared it authentic.]
The three qualities mentioned in this hadith are unique to the mother in the upbringing of the child; therefore, the mother has precedence over the father in the right of upbringing.
(Ibn Taymiyyah) The mother has more right than the father for the child’s upbringing because she is more compassionate, understands the child’s upbringing better, and is more patient.
[Commentary on Sabil al-Salam by Sheikh Abdullah Bassam: 1561/3]
(Siddiq Hasan Khan) It is unanimously agreed that the mother has more right than the father over the child.
[Al-Rawdah al-Nadiyyah: 183/2]
It should be noted that this right and superiority of the mother is before she remarries; once she remarries, this right is nullified as stated in the previous hadith: مالم تنكحي
(The Shafi’i, Hanafi, and Maliki schools) hold this view.
[Nil al-Awtar: 434/4]
(Ibn Mundhir) has reported consensus on this.
[Al-Ijma’ by Ibn al-Mundhir: 392]
However, it is narrated from Hazrat Uthman (RA) that this right does not become invalid even after marriage. Hasan al-Basri and Imam Ibn Hazm also hold this view.
[Al-Rawdah al-Nadiyyah: 183/2, Al-Mahalli: 325/10 – 329]
But this opinion is incorrect because it contradicts the explicit previous hadith.
Scholars differ on whether the right of upbringing is nullified by the mere contract of marriage or only after consummation.
(Abu Hanifah, Shafi’i) This right is nullified by the mere contract of marriage.
(Malik) It is nullified after consummation.
[Al-Ta’liq al-Radhiya by Al-Albani: 335/2]
(Ibn Qayyim) inclined towards the first opinion and considered it the majority view.
[Zad al-Ma’ad: 186/4]
(Qurtubi) states that consummation is necessary along with the contract.
[Tafsir Qurtubi: 101/3]
Then the maternal aunt is entitled, and then the father.
It is narrated from Hazrat Bara’ bin Azib (RA) that the Prophet (PBUH) gave the custody of Hamzah’s daughter to her maternal aunt and said:
الخالة بمنزلة الأم
“The maternal aunt is like the mother.”
[Bukhari: 2699, Kitab al-Sulh: Chapter on how to write: This is the settlement of so-and-so, Muslim: 1783, Tirmidhi: 1904, Bayhaqi: 5/8]
In a hadith from Hazrat Ali (RA):
والجارية عند خالتها فإن الخالة والدۃ
“A girl will be with her maternal aunt because the maternal aunt is like the mother.”
[Sahih: Irwa’ al-Ghalil: 246/7 – 248, Ahmad: 98/1, Mushkil al-Athar: 173/4, Abu Dawood: 2280, Hakim: 120/3]
These narrations clearly prove that the maternal aunt is on the level of the mother in nurturing the child. Imam Shawkani has reported consensus on this.
[Nil al-Awtar: 433/4]
There is no explicit evidence regarding this, but the Prophet’s (PBUH) statement to the mother:
أنت أحق به ما لم تنكحي
proves that after marriage, the child will remain under the care and upbringing of the father. Similarly, the narration that mentions giving the child a choice between mother and father also proves that after the mother, the father is entitled. However, the maternal aunt is given the right after the mother because she is considered in place of the mother in the other hadith. Therefore, after the mother, the maternal aunt has the right, and then the father.
◈ The above discussion about the right of upbringing concerns a child who is still young and has not reached the age of discernment. But when the child reaches the age of understanding and no longer needs upbringing and care, then the child will be given the choice between mother and father, as the Prophet (PBUH) said to a child:
يا غلام ! هذا أبوك وهذه أمك فخذ بيد أيهما شئت
“O boy! This is your father and this is your mother; hold the hand of whichever you wish.”
Then the child took the mother’s hand and she took him along.
[Sahih: Irwa’ al-Ghalil: 2192, Kitab al-Talaq: Chapter on who has the right over the child, Abu Dawood: 2277, Tirmidhi: 1357, Nasa’i: 3496, Ibn Majah: 2351, Ahmad: 7346 – Shakir, Mushkil al-Athar: 176/4; Imam Zail’i and Hafiz Ibn Hajar also declared this hadith authentic. Nasb al-Rayah: 269/3, Talkhis al-Habir: 12/4]
(Shafi’i, Ahmad, Ishaq) hold this view and set the age of choice at seven or eight years (but the effect of seven or eight years is weak).
[Irwa’ al-Ghalil: 2195]
(Abu Hanifah) The child will not be given a choice but will remain with the mother, and when her right ends, then with the father.
(Malik) The child will not be given a choice; girls have more right with the mother even after marriage, and boys have more right with the father even after they become adults.
[Al-Umm: 92/5, Al-Mabsut: 211/5, Al-Mughni: 435/4, Tafsir Qurtubi: 108/3]
The previous authentic hadith is evidence against the positions of Imam Malik and Imam Abu Hanifah. Moreover, if it is difficult to choose between the parents for the child, then the decision will be made by casting lots, as narrated from Hazrat Abu Hurairah (RA) that the Prophet (PBUH) said:
استهما فيه
“You both cast lots regarding this child.”
[Sahih: Sahih Abu Dawood: 1992, Kitab al-Talaq: Chapter on who has the right over the child, Abu Dawood: 2277, Nasa’i: 185/6, Ibn Abi Shaybah: 237/5]
(Ibn Qayyim) Whoever has more interest and welfare for the child should be chosen. If the mother can provide better upbringing and protection than the father and is a chaste woman, then the mother should be preferred over the father. In such a case, neither casting lots nor choice will be considered because the child is less understanding, immature, ignorant, and shortsighted. The one among the mother and father who takes better care of the child should be entrusted with the child. (If the father has these qualities more than the mother, then the child should be entrusted to the father, who will then be responsible for the upbringing.) The Shariah cannot bear anything else, and the Prophet (PBUH) said, “When children reach seven years, command them to pray…”
[Abu Dawood: 494]
And Allah Almighty said, “Protect yourselves and your families from the Fire.”
[At-Tahrim: 6]
So when the mother sends the child to school and teaches him the Quran, and the child prefers playing and socializing with peers, and the father allows these activities, then the mother is more deserving. In such a case, neither choice nor casting lots will be considered. Similarly, if the father teaches religion and the mother allows playing, then the father is more deserving.
[Zad al-Ma’ad: 474/5 – 475]
(Amir San’ani) This (i.e., Ibn Qayyim’s statement) is very excellent.
[Sabil al-Salam: 1564/3]
(Ibn Taymiyyah) He preferred this view.
(Shawkani) He holds this view.
[Nil al-Awtar: 436/4]
(Al-Albani) He pointed towards this (i.e., the one who has more interest in the child should be chosen).
[Al-Ta’liq al-Radhiya ‘ala al-Rawdah: 338/2]
(Strongest) This appears to be the strongest position.
Then the ruler will appoint a guardian from among the relatives who has the capability (for upbringing), and after reaching a strong age, the child will be given the choice between his father and mother.
Because when the mother, maternal aunt, and father are all absent, the child certainly needs someone to nurture, educate, and care for him. It is well known that among all others, close relatives can fulfill this responsibility with more kindness, compassion, and gentleness. Therefore, the ruler of the time will appoint one of them who has more capability as the guardian and mentor of the child.
➊ It is narrated from Hazrat Abu Hurairah (RA) that:
أن النبى صلى الله عليه وسلم خير غلاما بين أبيه و أمه
“The Prophet (PBUH) gave a boy the choice between his father and mother.”
[Sahih: Al-Ta’liq al-Radhiya ‘ala al-Rawdah: 339/2, Tirmidhi: 1397, Kitab al-Ahkam: Chapter on giving the boy a choice between his parents if they separate, Ibn Majah: 2351, Ahmad: 447/2, Nasa’i: 3496]
➋ It is narrated from Hazrat Rafi’ bin Sinan (RA) that he himself became Muslim, but his wife refused to accept Islam. The Prophet (PBUH) seated the mother on one side and the father on the other and placed the child between them. The child inclined towards the mother. The Messenger of Allah (PBUH) prayed: اللهم اهده “O Allah! Guide him.” Then the child inclined towards the father, and the father took the child.
[Sahih: Sahih Abu Dawood: 1963, Kitab al-Talaq: Chapter on if one parent becomes Muslim, with whom will the child be, Abu Dawood: 2244, Nasa’i: 3495, Hakim: 206/2, Ibn Majah: 2352, Dar Qutni: 43/4]
(Abdur Rahman Mubarakpuri) These hadiths show that a child who has reached the age of discernment must be given a choice, regardless of whether he is male or female.
[Tuhfat al-Ahwazi: 679/4]
Further details have been explained in the previous issue.
If no such person is found (whom the Shariah has appointed), then the person who can best provide for the child’s welfare should take custody.
Because the child needs him, it is obligatory upon Muslims to accept the responsibility of his upbringing and to spend his wealth properly, as the Book of Allah warns regarding the wealth of orphans.
