❖ Extracted from Fatāwā Amunpuri by Shaykh Ghulām Mustafa Zaheer Amunpuri ❖
✿ Custody Ruling: If the Divorced Mother Is Morally Corrupt (Fāḥishah) ✿
The Question:
A man and woman are divorced, and they have a young daughter.
Who gets the right to custody (ḥaḍānah) if the mother is morally corrupt (fāḥishah)?
The Ruling:
A mother only retains the right to custody if she is morally and religiously fit to raise the child.
If the mother is a fāḥishah (i.e., immoral or engaged in indecent behavior), then:
➤ Giving her custody would endanger the child’s physical and moral upbringing.
➤ Therefore, she loses her right, and custody is granted to the one—whether the father or another close family member—who is capable of providing an Islamic upbringing.
Scholarly Explanation:
❀ Imām Ibn al-Qayyim رحمه الله said:
“In the ḥadīth of Abū Hurayrah رضي الله عنه, the Prophet ﷺ gave a child the choice between parents. This was also practiced by the Rightly Guided Caliphs. None of the Companions opposed this view.”
He further elaborates:
✔ A mother is initially preferred during the early years because of her natural ability to nurture, breastfeed, and care for the child.
✔ But once the child grows to an age where they are no longer physically dependent, the reason to prefer the mother disappears, and the rights of both parents become equal.
✔ In that case, one parent is given preference either by drawing lots (قرعہ) or by giving the child the choice—both methods being established in the Sunnah.
“We give precedence to what the Prophet ﷺ gave precedence to. If the child expresses a clear choice, it should be accepted. If not, then drawing lots is the most fair and just method of resolution.”
He also added:
“According to Imām Aḥmad and Imām al-Shāfiʿī, if the child does not choose either parent, custody remains with the mother by default, because ḥaḍānah is her right and cannot be removed except by valid reason.”
Zād al-Maʿād 5/468◈ Summary of Key Points:
① A morally corrupt mother loses her custody rights, especially if her behavior poses harm to the child’s Islamic upbringing.
② Custody should go to the parent or family member who can best provide for the child’s religious and moral development.
③ If both parents are qualified, the child (if of discerning age) is allowed to choose.
④ If the child does not or cannot choose, custody defaults to the mother, unless there is a valid reason (such as fāḥishah) to prevent this.
⑤ Islamic child custody prioritizes religious nurturing, not emotional claims or biological closeness alone.
