Answered by Shaykh Irshaad Sedick
Please advise the fate of a wife who walked out of her matrimonial home in the guise that she can’t bear the pain of her husband marrying a second wife. She also takes with her the children, contrary to the husband’s consent to an unknown place, not her parent’s home.
Kindly highlight the right of custody of the children and their upkeep should the wife insist on keeping them despite the husband’s objection.
In the Name of Allah, the Most Merciful and Compassionate.
May Allah guide us to that which pleases Him, forgive us for our shortcomings, and alleviate our difficulties, Amin. In most cases, it is excruciating for the wife, children, and family members, when a man takes a second wife. The pain may genuinely be too much for some to handle. Therefore, such a decision shouldn’t be taken lightly and is only lawful if the husband can be just.
Given the considerations in such cases, we urge you to please consult reliable local scholars or counselors about the specifics of the situation. Jazakum Allah khayr. May Allah facilitate all ease and good for you.
The situation described should be dealt with much care if there is a desire to achieve matrimonial harmony and understanding. The wife should approach a local Islamic judiciary or mufti (jurisconsult) if she believes her husband is not just. Leaving her husband’s home without such measures would not be correct unless she fears for her safety or the safety of her children.
The father is always duty-bound and responsible in Sacred Law for the maintenance of his children. His financial responsibility toward his wife will be determined once the Islamic Judiciary decides the fate of the marriage, and Allah knows best.
The person with the best right to custody of a child (in order) when there is a dispute concerning who should have it is:
- The mother;
- The mother’s mother, mother’s mother’s mother, and on up, such that the one of the generation closest to the child takes precedence;
- The father;
- The father’s mother, father’s mother’s mother, and on up, where again, the one of the generation closest to the child takes precedence;
- The father’s father;
- The father’s father’s mother, her mother, and on up, where one of the closest generations takes precedence;
- Full sister;
- Full brother (though when the siblings are all male or all female, and there is a disagreement over who should have custody, they draw lots to see who will get it. When both males and females exist, females take precedence);
- The child’s half brothers or sisters from the same father;
- The half brothers or sisters from the same mother;
- The mother’s sister;
- The daughters of the full brothers;
- The sons of the full brothers;
- The daughters of the half brothers from the same father;
- The sons of the half brothers from the same father;
- The daughters of the half brothers from the same mother;
- The sons of the half brothers from the same mother;
- The father’s sister;
- The father’s brother;
- The daughters of the mother’s sister;
- The daughters of the father’s brother:
- And then the son of the father’s brother. [Misri, ‘Umdat al-Salik]
Conditions to Have Child Custody
- Uprightness – a corrupt person may not be a guardian because child care is a position of authority and the corrupt are unqualified for it. Imams Mawardi and Ruyani hold that outward uprightness is sufficient unless there is open wrongdoing. If the corruptness of a child’s mother consists of her not performing the prayer (salat), she has no right to custody of the child, who might grow up to be like her, ending up in the same vile condition of not praying, for keeping another’s company has its effects);
- Sanity (since a mother uninterruptedly insane has no right to custody, though if her insanity is slight, such as a single day per year, her right to custody is not vitiated by it);
- And if the child is Muslim, the person with custody must be a Muslim (because it is a position of authority, and a non-Muslim has no right to authority and hence no right to raise a Muslim. If a non-Muslim were given charge of the custody and upbringing of the child, the child might acquire the character traits of unbelief (kufr)). [Keller, Reliance of the Traveller]
I pray this is of benefit.
[Shaykh] Irshaad Sedick
Checked and Approved by Shaykh Faraz Rabbani
Shaykh Irshaad Sedick was raised in South Africa in a traditional Muslim family. He graduated from Dar al-Ulum al-Arabiyyah al-Islamiyyah in Strand, Western Cape, under the guidance of the late world-renowned scholar, Shaykh Taha Karaan.
Shaykh Irshaad received Ijaza from many luminaries of the Islamic world, including Shaykh Taha Karaan, Mawlana Yusuf Karaan, and Mawlana Abdul Hafeez Makki, among others.
He is the author of the text “The Musnad of Ahmad ibn Hanbal: A Hujjah or not?” He has served as the Director of the Discover Islam Centre and Al Jeem Foundation. For the last five years till present, he has served as the Khatib of Masjid Ar-Rashideen, Mowbray, Cape Town.
Shaykh Irshaad has thirteen years of teaching experience at some of the leading Islamic institutes in Cape Town). He is currently building an Islamic online learning and media platform called ‘Isnad Academy’ and pursuing his Master’s degree in the study of Islam at the University of Johannesburg. He has a keen interest in healthy living and fitness.