✍ Written by: Imran Ayub Lahori
The word حضَانة comes from حَضَنَ (Nasara pattern) and means "to nurture" or "to take into one’s lap." The form اِحْتَضَنَ carries the same meaning.
Shar‘i definition: Custody is the protection of one who is unable to manage their own affairs or safeguard themselves from harmful matters.
[سبل السلام: 3/1561]
Narrated by ‘Abdullah ibn ‘Amr (RA):
A woman came to the Messenger of Allah ﷺ and said:
"O Messenger of Allah! This is my son—my womb was his vessel, my breast his drink, and my lap his shelter. His father divorced me and now wants to take him away from me."
The Prophet ﷺ said:
أنت أحق به ما لم تنكحي
"You have more right to him as long as you do not remarry."
[Hasan: Sahih Abi Dawood: 1991, Abu Dawood: 2276, Dar Qutni: 3/305, Hakim: 2/207, Bayhaqi: 4/8–5; Authenticated by Hakim and Dhahabi]
These three qualities mentioned in the hadith are exclusive to the mother; therefore, she is given precedence over the father in custody.
This right exists before remarriage; if the mother remarries, her custody right lapses, as indicated in the hadith.
Some scholars (e.g., ‘Uthman RA, Hasan al-Basri, Ibn Hazm) held that remarriage does not annul the right, but this is not correct due to the explicit hadith.
Narrated by al-Bara’ bin ‘Azib (RA):
The Prophet ﷺ awarded custody of Hamzah’s daughter to her maternal aunt, saying:
الخالة بمنزلة الأم
"The maternal aunt is like the mother."
[Bukhari: 2699, Muslim: 1783, Tirmidhi: 1904, Bayhaqi: 5/8]
Similarly, ‘Ali (RA) narrated:
والجارية عند خالتها فإن الخالة والدۃ
"The girl will be with her maternal aunt, for the aunt is the mother."
[Sahih: Irwa’ al-Ghalil: 7/246–248, Ahmad: 1/98, Abu Dawood: 2280, Hakim: 3/120]
Imam al-Shawkani رحمه الله reported consensus that the maternal aunt holds this position.
[Nayl al-Awtar: 4/433]
When the child reaches an age of discernment (سن التمييز) and no longer requires full nurturing, the child is given the choice between parents, as in the hadith:
يا غلام ! هذا أبوك وهذه أمك فخذ بيد أيهما شئت
"O boy! This is your father and this is your mother—take the hand of whichever you wish."
[Sahih: Irwa’ al-Ghalil: 2192, Abu Dawood: 2277, Tirmidhi: 1357, Nasa’i: 3496, Ibn Majah: 2351, Ahmad: 7346]
If neither mother, maternal aunt, nor father is suitable, the judge appoints a close relative who is capable of proper upbringing and care.
➊ Narrated by Abu Hurairah (RA):
أن النبى صلى الله عليه وسلم خير غلاما بين أبيه و أمه
"The Prophet ﷺ gave a boy the choice between his father and mother."
[Sahih: al-Ta‘liq al-Radiyy: 2/339, Tirmidhi: 1397, Ibn Majah: 2351]
➋ Narrated by Rafi‘ bin Sinan (RA):
When he embraced Islam and his wife did not, the Prophet ﷺ seated them apart, placed the child between them, and prayed:
اللهم اهده
"O Allah, guide him."
The child leaned towards the father.
[Sahih Abi Dawood: 1963, Abu Dawood: 2244, Nasa’i: 3495, Ibn Majah: 2352]
Linguistic Explanation of Ḥaḍānah
The word حضَانة comes from حَضَنَ (Nasara pattern) and means "to nurture" or "to take into one’s lap." The form اِحْتَضَنَ carries the same meaning.
- الحِضن – the lap.
- الحاضنة – the woman who nurtures a child, such as a nurse or foster mother.
[القاموس المحيط: p. 1536, المنجد: p. 164, الصحاح: 5/2102]
Shar‘i definition: Custody is the protection of one who is unable to manage their own affairs or safeguard themselves from harmful matters.
[سبل السلام: 3/1561]
1. Mother’s Right to Custody Before Marriage
Narrated by ‘Abdullah ibn ‘Amr (RA):
A woman came to the Messenger of Allah ﷺ and said:
"O Messenger of Allah! This is my son—my womb was his vessel, my breast his drink, and my lap his shelter. His father divorced me and now wants to take him away from me."
The Prophet ﷺ said:
أنت أحق به ما لم تنكحي
"You have more right to him as long as you do not remarry."
[Hasan: Sahih Abi Dawood: 1991, Abu Dawood: 2276, Dar Qutni: 3/305, Hakim: 2/207, Bayhaqi: 4/8–5; Authenticated by Hakim and Dhahabi]
These three qualities mentioned in the hadith are exclusive to the mother; therefore, she is given precedence over the father in custody.
- Ibn Taymiyyah رحمه الله: The mother has more right than the father in raising a child because she is more compassionate, more experienced in upbringing, and more patient.
[التعليق على سبل السلام: 3/1561] - Siddiq Hasan Khan رحمه الله: There is consensus that the mother has more right than the father.
[الروضة الندية: 2/183]
This right exists before remarriage; if the mother remarries, her custody right lapses, as indicated in the hadith.
- Shafi‘i, Hanafi, Malik رحمه الله: Agree with this view.
[Nayl al-Awtar: 4/434] - Ibn al-Mundhir رحمه الله: Reported consensus on this.
[الإجماع: p. 392]
Some scholars (e.g., ‘Uthman RA, Hasan al-Basri, Ibn Hazm) held that remarriage does not annul the right, but this is not correct due to the explicit hadith.
2. When Mother’s Right Lapses
- Abu Hanifah, Shafi‘i رحمه الله: Custody lapses with the marriage contract itself.
- Malik رحمه الله: Lapses after consummation.
[التعليقات الرضية: 2/335] - Ibn al-Qayyim رحمه الله: Inclined towards the first view and considered it the opinion of the majority.
[زاد المعاد: 4/186] - Qurtubi رحمه الله: Held that consummation is also necessary.
[تفسير القرطبي: 3/101]
3. Next in Line: Maternal Aunt and Then Father
Narrated by al-Bara’ bin ‘Azib (RA):
The Prophet ﷺ awarded custody of Hamzah’s daughter to her maternal aunt, saying:
الخالة بمنزلة الأم
"The maternal aunt is like the mother."
[Bukhari: 2699, Muslim: 1783, Tirmidhi: 1904, Bayhaqi: 5/8]
Similarly, ‘Ali (RA) narrated:
والجارية عند خالتها فإن الخالة والدۃ
"The girl will be with her maternal aunt, for the aunt is the mother."
[Sahih: Irwa’ al-Ghalil: 7/246–248, Ahmad: 1/98, Abu Dawood: 2280, Hakim: 3/120]
Imam al-Shawkani رحمه الله reported consensus that the maternal aunt holds this position.
[Nayl al-Awtar: 4/433]
4. Custody of a Discerning Child
When the child reaches an age of discernment (سن التمييز) and no longer requires full nurturing, the child is given the choice between parents, as in the hadith:
يا غلام ! هذا أبوك وهذه أمك فخذ بيد أيهما شئت
"O boy! This is your father and this is your mother—take the hand of whichever you wish."
[Sahih: Irwa’ al-Ghalil: 2192, Abu Dawood: 2277, Tirmidhi: 1357, Nasa’i: 3496, Ibn Majah: 2351, Ahmad: 7346]
5. The Principle of Child’s Best Interest
- Ibn al-Qayyim رحمه الله: Custody should be awarded to the parent who ensures better upbringing and moral guidance, regardless of gender. If the father is more capable, the child stays with him, and vice versa.
[زاد المعاد: 5/474–475] - This view is supported by al-San‘ani, Ibn Taymiyyah, al-Shawkani, and hinted at by al-Albani.
6. Role of the Judge in Appointing a Guardian
If neither mother, maternal aunt, nor father is suitable, the judge appoints a close relative who is capable of proper upbringing and care.
7. Supporting Evidence
➊ Narrated by Abu Hurairah (RA):
أن النبى صلى الله عليه وسلم خير غلاما بين أبيه و أمه
"The Prophet ﷺ gave a boy the choice between his father and mother."
[Sahih: al-Ta‘liq al-Radiyy: 2/339, Tirmidhi: 1397, Ibn Majah: 2351]
➋ Narrated by Rafi‘ bin Sinan (RA):
When he embraced Islam and his wife did not, the Prophet ﷺ seated them apart, placed the child between them, and prayed:
اللهم اهده
"O Allah, guide him."
The child leaned towards the father.
[Sahih Abi Dawood: 1963, Abu Dawood: 2244, Nasa’i: 3495, Ibn Majah: 2352]
