Question:
Who has the right to raise young children?
Answer:
The teachings of Islam regarding the respect for humanity in human history have not been surpassed even marginally by any other religion, civilization, or movement. Islam protects five things of the son of Adam: life, wealth, intellect, honor, and faith. There are certain stages from birth to youth in which a human being is like a helpless structure, requiring complete and full attention, seeking guidance step by step. The responsibility of nurturing, fulfilling physical, intellectual, and religious needs is entrusted to the parents. However, sometimes the harsh realities of circumstances bring the message of separation between the child’s parents, and they have to part ways.
In such a situation, who will take responsibility for the child who needs growth and development, and whose parents have no involvement in this turmoil? Islam does not give preference to either the mother or the father for this; rather, the capability of the parents will be considered—who among them can nurture the child, provide complete religious, spiritual, physical, and intellectual needs, mother or father. If the mother has this capability, the child will be given to the mother, and if the father has this capability, the child will be given to the father. In Arabic, this is called “Hadanah.”
❀ While explaining the meaning of Hadanah, Allama San’ani (may Allah have mercy on him) says:
في الشرع حفظ من لا يستقل بأمره وتربيته ووقايته عما يهلكه أو يضره
“In legal terminology, Hadanah means the protection of someone who is not independent in their affairs, to nurture them and protect them from harmful or dangerous things.”
❀ Sayyiduna Abdullah bin Amr bin As (may Allah be pleased with them both) narrates:
إن امرأة قالت: يا رسول الله، إن ابني هذا كان بطني له وعاء، وثديي له سقاء، وحجري له حواء، وإن أباه طلقني، وأراد أن ينتزعه مني، فقال لها رسول الله صلى الله عليه وسلم: أنت أحق به ما لم تنكحي.
“A woman said: O Messenger of Allah! I carried this child in my womb, breastfed him, and raised him. His father has divorced me and wants to take him away from me. The Prophet (peace be upon him) said: Until he remarries, you have the greater right.”
Imam Hakim (may Allah have mercy on him) declared this hadith
“authentic chain” and Hafiz Dhahabi (may Allah have mercy on him) called it “authentic.”
❀ Hafiz Ibn Milqan (may Allah have mercy on him) also declared this hadith “authentic.”
❀ Allama Khatib (may Allah have mercy on him)
says:
لم يختلفوا أن الأم أحق بالولد الطفل من الأب ما لم تتزوج، فإذا تزوجت فلا حق لها فى حضانة، فإن كانت لها أم فأمها تقوم مقامها، ثم الجدات من قبل الأم أحق به ما بقيت منهن واحدة.
“There is no disagreement among the scholars that the mother has more right over the young child than the father until she remarries. Once she remarries, she has no right over the child. If the mother is not present, then the maternal grandmother, and then the higher grandmothers have the right.”
This is a consensus issue.
❀ Allama Abu Bakr Ibn al-Arabi (may Allah have mercy on him)
states:
اتفق العلماء على ذلك.
“The scholars are unanimous on this.”
❀ Abu Maymunah (may Allah have mercy on him) narrates:
“I was with Sayyiduna Abu Hurairah (may Allah be pleased with him) when he said: A woman came to the Messenger of Allah (peace be upon him) and said: My parents be sacrificed for you, my husband wants to separate my son from me, while my son benefits me and brings water from the well of Abi Anbah. Her husband also came and said: Who is disputing about my son? The Prophet (peace be upon him) said: Son! These are your father and mother; you may go with whomever you wish. The child took the mother’s hand and started walking.”
Imam Tirmidhi (may Allah have mercy on him) graded this hadith as “Hasan Sahih,” Imam Hakim (may Allah have mercy on him)
called it “authentic chain,” and Hafiz Dhahabi (may Allah have mercy on him) called it “authentic.”
❀ Allama Khatib (may Allah have mercy on him)
says:
هذا فى الغلام الذى قد عقل واستغنى عن الحضانة، فإذا كان كذلك خير بين أبويه.
“This ruling applies to a child who is sane and not in need of care. Therefore, when the child reaches such a stage, he will be given the choice between mother and father.”
❀ Nasir al-Sunnah, Allama Albani (may Allah have mercy on him) says:
“This is not absolute; rather, if the child is aware and recognizes, then this situation can be an exception. Otherwise, the child cannot be given the choice because he is of weak intellect. More details can be seen in Zad al-Ma’ad.”
❀ Allama Ibn Qayyim (may Allah have mercy on him) says:
“The preference or choice we have given is based on the child’s welfare. If the mother is more caring and protective than the father, she will be preferred. In such a case, no lottery or child’s choice will be considered because the child is of weak intellect and will prefer ease and play. When the child chooses one of the parents who supports him in frivolities, the child’s choice will be disregarded, and the child will remain with the one who is legally better for his welfare and protection. The Sharia allows this. The Prophet (peace be upon him) said: Command your children to pray at the age of seven, and beat them if they abandon prayer at the age of ten. Also, separate their beds. Allah Almighty says: ﴿يَا أَيُّهَا الَّذِينَ آمَنُوا قُوا أَنْفُسَكُمْ وَأَهْلِيكُمْ نَارًا وَقُودُهَا النَّاسُ وَالْحِجَارَةُ﴾
O believers! Protect yourselves and your families from a Fire whose fuel is people and stones. Imam Hasan al-Basri (may Allah have mercy on him) said: Take care of your children’s education and upbringing. When the mother sends him to school and introduces him to the Quran, and the child prefers playing and the company of his peers, while the father can also manage all this, then the father has more right without any lottery. The same ruling applies if the opposite is true. If neither parent has the ability to enforce the commands of Allah and His Messenger on the child, and the other can, then the latter has the right. I heard my Sheikh Allama Ibn Taymiyyah (may Allah have mercy on him) say: There was a dispute between parents over a child before a ruler. The judge gave the choice to the child, and the child chose the father. The mother told the judge to ask the child why he chose the father. When asked, he said: My mother sends me daily to the scribe, and the teacher beats me, while my father lets me play with children. The judge ruled in favor of the mother, saying: You have more right. Our respected teacher used to say: If either parent neglects the child’s education and duties, he is sinful and has no guardianship. Whoever does not take care of the child’s obligatory matters is not fit for guardianship. Either the guardianship will be taken from him and given to a caretaker or shared with someone who ensures the obligations because the purpose is to obey Allah and His Messenger as much as possible. Our Sheikh said: This is not an inherited right obtained through kinship, marriage, or guardianship, whether the heir is pious or corrupt. Rather, it is a guardianship in which obligations, knowledge, and as much implementation as possible are present. He also said: Suppose a man marries a woman who does not care for his daughter or understand her welfare, while her mother cares more for her welfare than the stepmother and can raise her well. In this case, nurturing is the mother’s right. He also said it should be known that the Shariah has not given absolute preference to either parent nor generally given the child the choice. The scholars agree that no one is absolutely preferred in nurturing. Therefore, a rebellious and negligent person cannot be preferred over a righteous, just, and beneficent one. And Allah knows best!”
