Islamic Fiqh > Marriage and family > Hadana (child custody) > The rules of the marriage without a named dower (al-mufawwada)
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Updated on 25 September 2026 at 3:23 PM
This part belongs to the full chapter: See all parts.
This dossier brings together nineteen fiqh leaves: five on marriage concluded without a named dower (al-mufawwada) and the consolatory gift (mut'a), and fourteen on the custody of the child (hadana) and its rules. Each leaf sets out the exact positions of the four schools, the texts of the Quran and the Sunna with their degrees of authenticity, and the classical references. It covers: the validity of a marriage without a dower, the mut'a, inheritance between spouses before consummation, then the conditions of custody (reason, upright conduct, Islam, residence, freedom from marriage), the mother's remarriage, the return of custody, the child's choice at the age of discernment, the minor come of age, the rent of the custody lodging, and the recovery of expenses.
The first case: the father marries his daughter who was compelled into marriage without a sadak (dower), or the woman authorizes her guardian to marry her off without a dower, whether he leaves the dower unmentioned or explicitly stipulates its negation.
The second case: the delegation of the mahr, that is, she is married on whatever she wants, or on what the husband, the guardian, or a third party wants (that is, someone other than the two spouses). The guardian may say: "I marry you to her on whatever we wish, or according to our judgment," or likewise: "according to your judgment," or "according to the judgment of so-and-so" (al-Mughni, 7/183; al-Furu', 5/219; al-Insaf, 8/299; Kashshaf al-Qina', 5/173-174; Sharh Muntaha al-Iradat, 5/272; Matalib Uli al-Nuha, 5/217; Manar al-Sabil, 3/25).
Here are some questions on the rulings of the delegated dower. The ruling on the delegated marriage: the jurists of the four schools and others agreed that the marriage of a woman married without a dower being named for her is valid. And according to the majority, in contrast to the Malikis as has preceded, the marriage remains valid even if the spouses stipulate in the contract the waiving or the negation of the dower, by the word of Allah the Most High:
"You commit no sin if you divorce women before touching them or before appointing a dower for them."
Surah Al-Baqarah, 236
Allah established divorce there in a marriage without an appointed dower, and divorce occurs only in a valid marriage: Allah therefore lifted the blame from one who divorces in a marriage without a named dower, and divorce occurs only after marriage, which proves the permissibility of marriage without naming. Likewise His word:
"O you who believe, when you marry believing women and then divorce them before you have touched them, no waiting period is to be counted for them: so provide for them and release them in a beautiful manner."
Surah Al-Ahzab, 49
The verse refers to divorce in a marriage without a named dower, as shown by His making the consolatory gift obligatory with "so provide for them": the gift (mut'a) is due only in a marriage without a named dower, which proves the permissibility of marriage without naming. The Prophet (peace and blessings of Allah be upon him) was also asked, through Alqama and al-Aswad, about a man who married a woman and then died without consummating the marriage or appointing a dower:
Abdallah ibn Mas'ud (may Allah be pleased with him) said nothing and sent them away for a month, then said: I give my opinion; if it is correct, it is from Allah, and if it is wrong, it is from me: she is entitled to the dower of women like her, without diminution or excess; she observes the waiting period and she inherits. A man of the Ashja' stood and said: the Messenger of Allah (peace and blessings of Allah be upon him) judged the like of this for Barwa' bint Washiq. Abdallah rejoiced at that and pronounced the formula of greatness.Authentic hadith narrated by Abu Dawud (2214), al-Tirmidhi (1145), Ibn Majah (1891) and Ibn Hibban in his Sahih (4100)
The purpose of marriage is indeed the persons of the two spouses, not the dower: this is why the naming of both spouses is required in the contract, the compensation being merely accessory; unlike sale, whose purpose is the compensation, to the point that naming the seller and the buyer is not required when the contract takes place through their agents (Bada'i' al-Sana'i', 2/274; al-Hidaya, 1/204; al-'Inaya, 4/472; al-Ikhtiyar, 3/127; Mukhtasar al-Wiqaya, 1/366-367; al-Jawhara al-Nayyira, 4/317; al-Bahr al-Ra'iq, 3/152; al-Taj wa-l-Iklil, 2/593; Sharh Mukhtasar Khalil, 3/273; al-Hawi al-Kabir, 9/472; al-Mughni, 7/183; Kashshaf al-Qina', 5/174; Sharh Muntaha al-Iradat, 5/273; Matalib Uli al-Nuha, 5/217).
Imam Ibn al-'Arabi (may Allah have mercy on him) said: the delegated marriage is lawful, meaning every marriage concluded without mention of the dower, with no disagreement on this; the dower is then appointed, and if it is appointed it joins the contract; if it is not appointed for her and divorce occurs, no dower is due by consensus, that is, before consummation (Ahkam al-Qur'an, 1/292; Tafsir al-Qurtubi, 3/197). Imam Ibn Rushd (may Allah have mercy on him) said: they agreed on the lawfulness of the delegated marriage, meaning that the marriage is concluded without a dower, by the word of Surah Al-Baqarah 236 (Bidayat al-Mujtahid, 2/19). Ibn Juzayy (may Allah have mercy on him): the delegated marriage is lawful by agreement (al-Qawanin al-Fiqhiyya, p. 136).
Imam Ibn Abd al-Barr (may Allah have mercy on him) said: the scholars of the Muslims agreed that it is not permissible for anyone to have relations with what was gifted to him without his neck being answerable for it, nor to have marital relations in a marriage without a named dower, in cash or as a debt; the one to whom the dower is delegated does not consummate until he names it, and if consummation occurs in that case, the dower of the like (mahr al-mithl) becomes due (al-Istidhkar, 5/408).
Ibn Qattan al-Fasi (may Allah have mercy on him) said: they agreed that whoever marries a woman without a dower being named: the marriage stands, whether he consummates it with her or not (al-Iqna' fi Masa'il al-Ijma', 3/1221, no. 2232). The Shaykh of Islam Ibn Taymiyya (may Allah have mercy on him) said: the scholars agreed that whoever marries a woman without appointing a dower for her: the marriage is valid and the dower becomes due to her if he consummates the marriage; if he divorces her before consummation, she has no dower, but she has the consolatory gift (mut'a) by the text of the Quran (Majmu' al-Fatawa, 32/62-63).
Second question: a man concludes a marriage without naming a dower, which is what is called tafwid (delegation), or denies the dower at the time of the contract, or waives it, and then divorces her before consummating the marriage: is the dower forfeited? Is half the dower of the like due? Or is the mut'a due to her as an obligation or as a recommendation?
The Malikis, as has preceded, hold that the marriage contract is corrupted if the dower is denied or waived; she is entitled to the dower of the like if he consummates the marriage, and to nothing at all, according to the sound view, if he does not consummate it. If he divorces her in a delegated marriage before consummation without appointing a dower, nothing is due from him, not even the mut'a, as will come (al-Ma'una, 1/498; al-Taj wa-l-Iklil, 2/581; Sharh Mukhtasar Khalil, 3/626; al-Sharh al-Kabir with the gloss of al-Dasuqi, 3/145; Tahrir al-Mukhtasar, 3/20-21).
The majority of the jurists, namely the Hanafis, the Shafi'is and the Hanbalis within the school, hold that if a man does not name a dower for the woman in the marriage contract, or concludes it on the negation or the waiver of the dower and then divorces her before consummation, the mut'a becomes due to her, and not half the dower of the like, by the word of the Most High:
"You commit no sin if you divorce women before touching them or before appointing a dower for them: so provide for them."
Surah Al-Baqarah, 236
The Malikis in one view, and the Hanbalis in a narration, hold that half the dower of the like is due: it is a valid marriage that gives rise to the dower of the like after consummation, hence half of it through divorce before consummation, as if the dower had been named (al-Mughni, 7/183-184; al-Kafi, 3/107).
Third question: is the woman divorced before consummation, with no dower appointed, or with the dower denied or waived from the marriage contract, entitled to the mut'a, or is it only recommended? The majority of the jurists, the Hanafis, the Shafi'is and the Hanbalis within the school, hold that the mut'a is due to her if she is divorced before consummation and no dower was named, denied or waived, by the word of the Most High in Surah Al-Baqarah 236, whose meaning is: (before you touched them and before you appointed for them a duty). This is a command, and a command entails obligation. The Most High also said:
"And for the divorced women is a provision according to what is acceptable: a duty upon those who fear Allah."
Surah Al-Baqarah, 241
"O you who believe, when you marry believing women and then divorce them before you have touched them, there is no waiting period for you to count against them: so provide for them and release them in a beautiful manner."
Surah Al-Ahzab, 49
It is moreover a divorce in a marriage that entails a compensation, which is not deprived of it, as if a dower had been named; and fulfilling an obligation is an act of excellence, with no contradiction between the two. He has also consummated the marriage (acquired his right over her), while she deserves nothing of the dower if it was not named before consummation: if the mut'a were not due, her intimacy would remain without any compensation, and she would be like the woman gifted as a present, a privilege the Messenger of Allah (peace and blessings of Allah be upon him) alone had among his community. She has also been debased by a contract for which she obtained nothing: it was therefore required that the mut'a serve as its compensation, so that she would not be debased without payment (al-Muwatta' according to the narration of Muhammad ibn al-Hasan, 2/529; Mukhtasar Ikhtilaf al-'Ulama', 2/265-266; al-Mabsut, 6/61; Ahkam al-Qur'an of al-Jassas, 2/135, 137; Bada'i' al-Sana'i', 2/274; al-Hidaya, 1/205; al-'Inaya, 4/481-482; al-Jawhara al-Nayyira, 4/317; al-Bahr al-Ra'iq, 3/157; Sharh Sahih al-Bukhari of Ibn Battal, 7/523, 533; al-Hawi al-Kabir, 9/547; al-Mughni, 7/183-184; al-Kafi, 3/107).
The Malikis hold that the mut'a is recommended and not obligatory, from the apparent sense of the verse "a duty upon those who fear Allah" (Surah Al-Baqarah, 241) and, elsewhere, "a duty upon those who do good" (Surah Al-Baqarah, 236): an indication that it is recommended. Were it obligatory, it would have been stated for all creation, for the obligatory applies necessarily to those who fear Allah and to those who are not. "A duty upon those who do good" means: upon those who go to excess and adorn themselves; whatever belongs to giving and benevolence is not an obligation. Divorce, indeed, has as its effect removal and not imposition: if he names a dower and then divorces, half of it lapses and nothing else is incumbent on him; what was previously due has ceased, all the more so nothing new arises. Divorce is a form of separation: no mut'a arises from it, as from death; every woman who dies has no mut'a, and likewise one who is divorced, and this concerns the origin of the case: divorce before consummation when a dower had been named for her. Nor do we see anything in marriage that becomes due to the woman by the mere dissolution of the contract, in comparison with the other obligations: the mut'a is a gift about which no consideration is made in any respect, so it is not obligatory, like the donation and the charity (al-Istidhkar, 6/121-122; al-Ishraf 'ala Nukat Masa'il al-Khilaf, 3/353-354, no. 1188; Tafsir al-Qurtubi, 3/200; Bidayat al-Mujtahid, 2/73-74).
The amount of the mut'a, and whether it belongs to every divorced woman, will come, Allah willing, in the chapter on the mut'a.
If the dower was appointed at the contract, the dower appointed after the contract is attached to it by way of assimilation (i'tibar), as one attaches a thing to what resembles it in meaning (Ahkam al-Qur'an of al-Kiya al-Harasi, 1/206; Ahkam al-Qur'an of Ibn al-'Arabi, 1/292; al-Taj wa-l-Iklil, 2/594; Sharh Mukhtasar Khalil, 3/274; al-Sharh al-Kabir with al-Dasuqi, 3/163; Tahrir al-Mukhtasar, 3/44; al-Hawi al-Kabir, 9/548; al-Najm al-Wahhaj, 7/332; Mughni al-Muhtaj, 4/379; al-Dibaj, 3/327; al-Mughni, 7/184).
The Hanafis and the Hanbalis in one narration hold that half the named dower is not due, but only the mut'a: the marriage came without naming, so the mut'a arises from it as if nothing had been appointed for her; the cause is indeed specific to the dower appointed in the contract by the text: "half of what you appointed," and the dower appointed after the contract is not part of its meaning (Majma' al-Anhar, 1/513; al-Muheet al-Burhani, 3/242; Tabyin al-Haqa'iq, 2/141; Durrar al-Hukam, 4/120; al-Ikhtiyar, 3/127-128; al-Jawhara al-Nayyira, 4/317, 319; al-Lubab, 2/37-38; al-Mughni, 7/184).
Fifth question: the husband or wife dies before consummation, with no dower named, or with the dower denied in the contract or waived. The people of knowledge agreed that when one of the spouses dies before consummation, the other inherits from him: Allah the Most High appointed for each of the two spouses a share: "They are entitled to a fourth of what you leave" (Surah An-Nisa, 12); here is a wife without any doubt, the marriage contract is valid and established, and he therefore inherits by it, falling within the generality of the text.
Imam al-Mawardi (may Allah have mercy on him) said: as for the woman with a delegated dower, if her husband dies before consummation, or if she dies, the two inherit from one another by consensus, by the word of Allah: "You are entitled to half of what your wives leave" (Surah An-Nisa, 12): they are spouses by the validity of the marriage between them (al-Hawi al-Kabir, 9/479).
The jurists nevertheless differed: if the husband or wife dies after the contract and before consummation without having named a dower, is a dower due, or only half the dower of the like? The Malikis and the Shafi'is in the most apparent view hold that if a man concludes a marriage without appointing a dower and dies before consummation, or she dies before consummation with no dower named, she has no sadak and no mut'a: it is a dissolution that befell a valid delegation before any appointed and established dower, so no dower arises from it, as with dissolution by divorce; and since the dower is a compensation, when the compensated thing has not been received the compensation is not due, by analogy with sale. Malik narrated in the Muwatta', from Nafi', that the daughter of Ubayd Allah ibn Umar, whose mother was the daughter of Zayd ibn al-Khattab, was married to a son of Abdallah ibn Umar; he died without consummating the marriage with her and without naming a dower; her mother sought her dower. Abdallah ibn Umar said: "She has no dower; if she had a dower, we would not withhold it and we would not wrong her." Her mother refused to accept that; they referred their dispute to Zayd ibn Thabit, who judged that she had no dower but that she inherited (authentic hadith narrated by Malik in the Muwatta', 1098).
It was also narrated from the Prophet (peace and blessings of Allah be upon him): "Hand over the ala'iq (the suspended dowers)." It was said: and what are the ala'iq, O Messenger of Allah? He said: "What the spouses agree upon."Narrated by Sa'id ibn Mansur in his Sunan (619) and Ibn Abi Shaybah (16361, 36168); a very weak hadith
This hadith would indicate that what is entitled by the contract is only what the spouses agree upon. By analogy as well: it is the dissolution of a delegated dower before appointment and consummation, from which no dower arises, as with divorce; and death is a cause by which dissolution occurs, so no dower arises from it, as with nursing (rada') and apostasy; the woman whose half dower was not paid through divorce does not acquire the whole through death, like the woman whom her husband frees from her dower; and everything not completed through divorce is not completed through death, like the excess beyond the dower of the like. As for the hadith of Barwa', its establishment is disputed (al-Istidhkar, 5/424-426; Bidayat al-Mujtahid, 2/20; al-Bayan wa-l-Tahsil, 17/143; Tafsir al-Qurtubi, 3/198-199; al-Qawanin al-Fiqhiyya, p. 136; Sharh al-Zarqani, 3/170; al-Hawi al-Kabir, 9/480; Rawdat al-Talibin, 5/142-143; al-Najm al-Wahhaj, 7/332-333; Mughni al-Muhtaj, 4/379; Tuhfat al-Muhtaj, 9/106; Nihayat al-Muhtaj, 6/405; al-Dibaj, 3/327).
The Hanafis, the Shafi'is against the most apparent view, the one preferred by al-Nawawi and others, and the Hanbalis within the school, hold that if the husband dies, the whole dower is due and the dower of women like her is completed for her, by what was narrated from Alqama and al-Aswad from Abdallah ibn Mas'ud (may Allah be pleased with him), mentioned above (authentic hadith: Abu Dawud 2214, al-Tirmidhi 1145, Ibn Majah 1891, Ibn Hibban in his Sahih 4100), a text bearing precisely on the place of the dispute. Death is indeed what completes the naming: the dower of the like is completed for the woman with a delegated dower as by consummation. The analogy of death to divorce is unsound: death completes the marriage, hence the dower, while divorce cuts it off before its completion; this is why the waiting period becomes due through death before consummation and not through divorce, and the named dower is completed through death and not through divorce.
Moreover, what is due by the contract in such a case is the dower of the like, which is why the woman may claim it from the husband before consummation; it is confirmed and established by the death of one of the two, as by consummation, as with the dower named in the contract. The same applies to the dhimmi woman among the Shafi'is and the Hanbalis, like the Muslim woman, or as if a dower had been named for her: the Muslim woman and the dhimmiyya do not differ at all regarding the dower, so there can be no difference here (al-Muwatta' according to Muhammad ibn al-Hasan, 2/462; Bada'i' al-Sana'i', 2/275; al-Ikhtiyar, 3/127; al-Jawhara al-Nayyira, 4/317; al-Lubab, 2/36; Sharh Fath al-Qadir, 3/325; Tabyin al-Haqa'iq, 2/139; Ikhtilaf al-'Ulama', 1/142-143; al-Mughni, 7/189; al-Kafi, 3/105; Sharh al-Zarkashi, 2/433; Majmu' al-Fatawa, 32/63; al-Mubdi', 7/168-169; al-Insaf, 8/297-298).
Imam Ahmad, in a narration, holds that the dower is halved by her death, and she is then owed half the dower of her like: what was appointed for her differs from what was not appointed at divorce, so it may differ from it after death; it is moreover a dissolution that befell a valid delegation before any appointed and established dower, so the dower of the like is not due to her, as with dissolution by divorce. Unless the judge appointed it for her: in that case it is not halved, for the judge's appointment makes it like the named dower, and had he named a dower and then died, it would be due in full; so likewise if he appointed it (al-Mughni, 7/189; al-Kafi, 3/105; Sharh al-Zarkashi, 2/433; al-Mubdi', 7/168-169; al-Insaf, 8/297-298).
Imam al-Shafi'i (may Allah be pleased with him) suspended the view in this question upon the establishment of the hadith of Barwa' bint Washiq. He said: the delegation is that the man concludes by this marriage contract what is known to be a delegation in marriage: to marry the free woman who is mistress of herself with her consent without naming a dower, or to say to her: "I marry you without a dower"; the marriage is then established: if he consummates it, she has the dower of her like; if he does not touch her until he divorces her, she has neither mut'a nor half a dower. And if he says: "I marry you, and you have a claim on me of one hundred dinars as dower," this is a delegation and more, and the one hundred does not bind him; if he takes it back from her, she returns it to him in every case; and if he dies before naming a dower for her, or she dies, it is the same (al-Umm, 5/68-69).
It was also narrated that the Prophet (peace and blessings of Allah be upon him) judged for Barwa' bint Washiq, who was married without a dower and whose husband died: he judged for her the dower of women like her as well as inheritance. Al-Shafi'i: if this is established from the Prophet (peace and blessings of Allah be upon him), it is of all matters the one with the greatest claim upon us; no saying of any authority stands against the word of the Prophet (peace and blessings of Allah be upon him), however many they be, nor any qiyas: there is in his word only obedience to Allah by submission to him. If the hadith is not established from the Prophet, no one may establish it from him: I have not retained it thereafter from any chain that would establish it; it is narrated once from Ma'qil ibn Yasar, and once from Ma'qil ibn Sinan, and once from a man of the Ashja' who is not named. Failing establishment: if one of the two dies, she has no dower; he inherits from her if she dies, she inherits from him if he dies, and there is no mut'a in death, for she is not divorced: the mut'a was made only for the divorced woman (al-Umm, 5/68-69).
Al-Shafi'i also narrated: Abd al-Majid informed us from Ibn Jurayj who said: I heard 'Ata' say: I heard Ibn Abbas being asked about the woman whose husband dies after he appointed her dower; he said: she has the dower and the inheritance. Malik informed us from Nafi' the account of the daughter of Ubayd Allah ibn Umar, already mentioned, judged by Zayd ibn Thabit: no dower, but the inheritance. Sufyan, from 'Ata' ibn al-Sa'ib, said: I asked 'Abd Khayr about a man to whom the dower was delegated and who died without appointing it; he said: she has only the inheritance, and "without any doubt" it is the word of Ali; al-Shafi'i said: Sufyan said: I do not know whether "without any doubt" is from the word of Ali, or of 'Ata', or of 'Abd Khayr. Al-Shafi'i adds: in marriage there is another case that falls within the name of delegation without being the delegation known in itself, and it differs from the preceding case: that the woman say to the man: "marry me on condition that you appoint for me what you wish, or what I wish, or what you judge, or what I judge, or what so-and-so wishes, or what he approves, or what so-and-so judges"; all of that contains a condition of dower, but an unknown condition: it is like a corrupted dower, like the fruit whose soundness is unknown so long as it is left until it ripens, or the carrion, the wine and their like, whose ownership and sale are unlawful in that state or forever. In all of these cases she has the dower of the like, and half the dower of the like if he divorces her before consummating the marriage; and the mut'a according to the one who holds that the mut'a belongs to every divorced woman (al-Umm, 5/68-69).
Sixth question: he consummates the marriage without naming a dower, or stipulating the waiver or the negation of the sadak. The people of knowledge agreed that if a man concludes a marriage and consummates it without naming a dower, the dower of the like is due to her, without diminution or excess: since the dower is due on account of illicit intercourse (shubha), all the more is it due on account of intercourse in a valid marriage; and what this consummation gives rise to is the dower of the like, unanimously, whether death or divorce follows (al-Hawi al-Kabir, 9/479).
Imam Ibn Abd al-Barr (may Allah have mercy on him): the scholars of the Muslims agreed that it is not permissible for anyone to have relations with what was gifted to him without his neck being answerable for it, nor to have marital relations in a marriage without a named dower in cash or as a debt; the one to whom the dower is delegated does not consummate until he names it, and if consummation occurs, the dower of the like becomes due (al-Istidhkar, 5/408). Ibn Qattan al-Fasi: the woman who has been touched without a dower being named for her has the dower of women like her, without diminution or excess, and there is no dispute among the people of knowledge about this (al-Iqna' fi Masa'il al-Ijma', 3/1221-1222, no. 2233).
Imam Ibn al-'Arabi (may Allah have mercy on him): the delegated marriage is lawful, every marriage concluded without mention of the dower, with no disagreement; the dower is then appointed, and if it is appointed it joins the contract; if it is not appointed and divorce occurs, no dower is due by consensus (Ahkam al-Qur'an, 1/292; Tafsir al-Qurtubi, 3/197). The Shaykh of Islam Ibn Taymiyya (may Allah have mercy on him): the scholars agreed that whoever marries a woman without appointing a dower for her: the marriage is valid and the dower becomes due to her if he consummates the marriage (Majmu' al-Fatawa, 32/62-63). Imam Ibn Hazm (may Allah have mercy on him): they agreed that every woman touched in a valid marriage without a dower having been named for her has the dower of her like (Maratib al-Ijma', p. 69).
The jurists of the four schools, the Hanafis, the Malikis, the Shafi'is and the Hanbalis, state that upright conduct ('adala) and trustworthiness are required of the custodian's person, male or female, in herself and in her religion: the custody of the immoral person (fasiq) is invalid. The immoral person is indeed neither trustworthy nor answerable, for he is not relied upon to fulfill the duty of custody; and the child in custody has no share in his custody, for he may grow up upon his way. Apparent upright conduct suffices, as with the witnesses of marriage (Mukhtasar al-Wiqaya, 1/437; al-Ikhtiyar, 4/18; Hashiyat Ibn Abidin, 3/564; al-Taj wa-l-Iklil, 3/261; Sharh Mukhtasar Khalil, 4/211; al-Sharh al-Kabir with al-Dasuqi, 3/511; Tahrir al-Mukhtasar, 3/442; Hashiyat al-Sawi on al-Sharh al-Saghir, 6/181; al-Najm al-Wahhaj, 8/300; Mughni al-Muhtaj, 5/197; al-Dibaj, 3/654; al-Mughni, 8/190; Manar al-Sabil, 3/210).
Al-Mawardi (may Allah have mercy on him) said: since upright conduct is a condition for deserving guardianship, it is a condition for deserving custody; the immoral person neglects the good of his own person, so he is more likely to neglect the good of his child, and the child may imitate his corruption, given his living with him and his upbringing beside him. The upright conduct considered here is apparent upright conduct, the kind considered for the guardianship of marriage, not the inner upright conduct considered for the acceptance of testimony: his apparent uprightness suffices to give assurance that, as guardian, he attends to his child's interests. If he becomes upright again after his immorality, he deserves custody; if he becomes immoral after his uprightness, he leaves custody, and both parents are equal in this. If one of them claims the other's immorality in order to have custody alone, without a free choice being granted, his word is not accepted and he may not swear against him: the principle remains apparent uprightness, until the claimant establishes proof of the immorality, whereupon custody falls (al-Hawi al-Kabir, 11/503-504).
The jurists differed about the custodian: must she be a Muslim? May a non-Muslim mother keep the young child? The Hanafis, the Malikis in the famous view, and the Shafi'is in one view, hold that the non-Muslim mother married to a Muslim, whether a dhimmiyya who was divorced, or a Magian whose husband embraces Islam while she refuses it, so that they are separated, has of custody what a Muslim woman has, if the child is in a protected place (hirm) with her and one is assured that she will not feed him wine or pork; if that is feared, the child is entrusted to Muslims, without being wrested from her according to the Malikis so long as the little girl has not grown up and is with her outside any protected place.
The Hanafis said: the mother has more right to her child than her Muslim husband so long as the child has not reached the age of discerning religions and there is no fear that he may grow attached to disbelief, whether the child is a boy or a girl; once he discerns religions, she would instill in him the morals of disbelief, which would harm him. They cite as evidence the hadith of Rafi' ibn Sinan: he embraced Islam and his wife refused to do so; she came to the Prophet (peace and blessings of Allah be upon him) and said: my daughter, who is weaned, or the like. Rafi' said: my daughter. The Prophet said to him: sit on one side; and to her: sit on one side; he seated the child between them, then said: call her. The little girl inclined toward her mother. The Prophet (peace and blessings of Allah be upon him) said: O Allah, guide her. The little girl then inclined toward her father, and he took her (an authentic hadith narrated by Abu Dawud (2244), al-Nasa'i (3495) and Ahmad (23810)).
This hadith shows that disbelief does not cause custody to lapse; moreover, the disbeliever is religious according to his conviction, so he is to be trusted with his child (al-Hidaya, 2/38; al-'Inaya, commentary on al-Hidaya, 6/189; al-Ikhtiyar, 4/18; al-Jawhara al-Nayyira, 5/80; Tabyin al-Haqa'iq, 3/49; Hashiyat Ibn Abidin, 3/565; al-Taj wa-l-Iklil, 3/262; Sharh Mukhtasar Khalil, 4/212; al-Sharh al-Kabir with al-Dasuqi, 3/512; Tahrir al-Mukhtasar, 3/444).
The Shafi'is within the school, the Hanbalis and some Malikis such as Ibn Wahb and others, hold that Islam is required of the custodian: if the mother is a dhimmiyya, custody is not established for her, for custody is a guardianship, and no guardianship of a disbeliever over a Muslim is established, like the guardianship of marriage and property, by the word of Allah the Most High:
"And Allah will never grant the disbelievers a way over the believers."
Surah An-Nisa, 141
The difference of religion indeed prevents the establishment of guardianship, as it prevents it over property; and guardianship involves what cannot be guaranteed against: that she lead the child away from his religion, and he may contract from her disbelief habits whose shedding becomes impossible after maturity. If custody is not established for the immoral person, the disbeliever is more deserving of that: his harm is greater, for he leads the child away from his religion by teaching him disbelief, adorning it for him and bringing him up upon it, and this is the greatest of harms. Custody, moreover, is established only out of compassion for the child: it cannot therefore be instituted in a manner that causes his ruin and the ruin of his religion.
As for the argument drawn from the hadith, it is weak according to the masters of hadith. Were it authentic, it would be answered in three ways. First, this hadith aimed at the manifestation of the miracle through the answering of his supplication (peace and blessings of Allah be upon him). Second, the little girl was weaned, and the weaned child is not given the choice. Third, he directed her guidance to the rightful custodian, not to Islam: her Islam was already established through her father's Islam; had there been a right for the mother, he would have confirmed it and would not have directed her guidance to the rightful custodian. As for their argument that the disbeliever is trustworthy with his child, it is answered: he may be so for his body, but not for his religion; his share in religion is stronger: if the disbelieving one of the two parents embraces Islam, custody returns to him, and if the Muslim apostatizes, his custody lapses (al-Taj wa-l-Iklil, 3/262; Sharh Mukhtasar Khalil, 4/212; al-Sharh al-Kabir with al-Dasuqi, 3/512; Tahrir al-Mukhtasar, 3/444; al-Hawi al-Kabir, 11/503; al-Najm al-Wahhaj, 8/300; Mughni al-Muhtaj, 5/197; al-Dibaj, 3/654; al-Mughni, 8/190; Manar al-Sabil, 3/210).
Most jurists state that when the two parents separate while residing in a single city, the mother has more right to the child than the father so long as she does not remarry. And when one of the two parents wishes to travel for relocation and settlement, such that he ends up far from the other: according to most jurists, the child remains with the father if he is the one traveling to settle elsewhere, except for the Hanafi detail that will be explained; and the father has more right to the child than the mother, boy or girl alike, according to the generality of scholars, when the travel involves no harm, is safe, and is in a secure land: he is then more entitled to him, for his being with the father is better for him, for the preservation of his lineage and the completion of his upbringing, teaching and discipline, whereas with the mother his interest is lost.
If the mother wishes to travel with the boy or the girl from the city in which the marriage contract was concluded, the father has more right to him. The Hanafis explain it thus: the place of custody is the place of the spouses so long as the marital bond subsists between them, to the point that if the husband wishes to leave the country and take his young child, held by the women who have custody, he has no right to do so until he can dispense with them: they indeed have more right to custody than he, so he cannot snatch him from their hands, which would nullify their right, let alone removing him from the country. If the woman wishes to leave the city in which she resides for another, the husband may prevent her from leaving, whether she has a child with her or not: she must indeed reside in her husband's house; likewise, when she is in her waiting period, it is not permissible for her to go out with the child or without him, nor is it permissible for the husband to expel her, by the word:
"Do not expel them from their homes, nor should they leave, unless they commit a flagrant indecency."
Surah At-Talaq, 1
Once separation has occurred and the waiting period has ended, if she wants to go out with her child from the country in which she resides to another country, the case divides into categories. If she wishes to return to her own city, and the marriage took place there, she may do so: for example a woman of Kufa married in Kufa, then moved to Syria where she bore children, then separation occurred between them and the waiting period ended: she wants to move her children to Kufa, and she may do so without the father's consent. The obstacle, indeed, is the harm of separation from his child, and he consented to it: the proof of consent is the marriage concluded in her city, for whoever marries a woman in her city intends, apparently, to reside there; and the child is among the fruits of marriage: he therefore consented to the child's custody in that country, and thereby to separation. But so long as the marriage lasts, she must follow her husband; once the bond is gone, the obstacle is gone.
If the marriage took place outside her city, it is not permissible for her to move with her child to her city: for example a woman of Kufa married in Syria, then separation occurred and she wants to take her child to Kufa: this is not permitted, for the marriage not having taken place in her city, there is no indication of consent to residing in her city, so he did not consent to the child's custody with her, nor thereby to the harm of separation. And if she wants to take the child to a country that is not her own, but where the marriage took place, as when a woman of Kufa is married in Syria and then moved to Basra, where separation occurs, and she wants to move with her children to Syria: this is not permitted, for that country where the marriage took place is neither hers nor the husband's; it is a land of exile for her like the country where the husband is: the marriage there is therefore not a proof of consent to residing there, so he did not consent to the child's custody, which is among the fruits of marriage, in that country, nor thereby to the harm of separation. Two conditions have therefore been considered in principle: first, that the country to which she wants to move the child be her own country; second, that the marriage have taken place there; failing either, the guardianship of moving is not established for her.
This, when the distance between the two countries is far; if it is short, such that the father can visit his child and return home before nightfall, she may do so: the move then inflicts on the father no great harm, being like a move to the outskirts of the city. If the father is settled in the city and she wants to take the child to a village: if he married her there and it was her village, she may do so; if it is far from the city, no; and if that village is not hers but his, and the marriage originally took place there, she may do so as with the city; if the marriage did not take place there, she may not, even if the village is near the city. It is, finally, not permissible for the woman to take her child to the land of war (dar al-harb), even if the husband had married her there and she was of its people, after a Muslim or dhimmi husband: this harms the child, for he would take on the morals of disbelief and be harmed by it; if both parents are people of the land of war, she may do so: the child follows his two parents, who are among the people of the land of war (Tuhfat al-Fuqaha, 2/231; Bada'i' al-Sana'i', 4/44-45; Mukhtasar Ikhtilaf al-'Ulama', 2/460; al-Mabsut, 6/169, 171; al-Hidaya, 2/39; al-Jawhara al-Nayyira, 5/80-81; al-Fatawa al-Hamidiyya, 1/431-432).
The Malikis said: if the father wants to relocate and settle in another country, he has more right to the child than his mother; likewise if the mother wants to relocate to another country without intending to settle with her child, the father has more right to him than she and than the others: his being with his father is an enduring interest, his being with his mother a temporary one that soon vanishes, and consideration of the enduring interest takes precedence. If he wants to go out for trade, this is not granted to him; the same applies to the child's guardians who are close to his property if they move to settle: if the mother moves with them, the child remains in her custody, but she may not move the child from the father's place of residence, except for what approaches the distance within which the prayer is not shortened. If it was stipulated, at the time of his departure from her country, that he would not leave the child with her unless she undertook to provide for his food and needs for a known number of years, and she undertook that and then died, that undertaking does not pass to her heirs, any more than upon the child's death; nor like when she settled for the maintenance of pregnancy and nursing and then waived it: nothing of it remains (al-Ishraf 'ala Nukat Masa'il al-Khilaf, 4/76, no. 1425; al-Kafi, 1/297; al-Taj wa-l-Iklil, 3/264-265; Sharh Mukhtasar Khalil, 4/215-216; al-Sharh al-Kabir with al-Dasuqi, 3/516; Tahrir al-Mukhtasar, 3/447-448).
The Shafi'is said: when a woman separates from her husband while there is between them a young child, and one of the two parents wants to travel to a country, there are two kinds. The first: a journey of need, from which one returns once the need is met: the one who stays behind of the two, whether father or mother, has more right to his custody, boy or girl alike: remaining is safer and travel riskier. The second: a journey of relocation, to settle in a country other than that of the other, itself divided into two cases. If the distance between the two countries is short, without shortening of the prayer (less than a day and a night): nothing prevents custody, and the child's choice is not voided by such a move, whether the father or the mother moves; the child chooses between them, and whichever he chooses has his custody, whether he chose the one who stayed or the one who moved, father or mother: a short distance is indeed like residing, in the absence of the rules of travel, like a very large country in which moving does not prevent entitlement to custody. If the distance between the two countries is long, with shortening of the prayer: the father has more right to the custody of his child, for the preservation of his lineage against the mother, whether he himself stays or moves; and if he returns from his relocation journey to the mother's country, her right returns. All this, however, on condition of the safety of the road and of the intended country: he may not take a feared road, nor bring him to a feared country; if one of the two parents is in that situation, the child is confirmed with his mother; and he may not bring him to the land of war (al-Hawi al-Kabir, 11/504; al-Muhadhdhab, 2/172; al-Bayan, 11/290-291; al-Najm al-Wahhaj, 8/309-310; Mughni al-Muhtaj, 5/200-201; Tuhfat al-Muhtaj, 10/262-263; al-Dibaj, 3/659).
The Hanbalis said: if one of the parents wants to travel for a need and then return, the other remaining resident, the one who remains has priority in custody, for traveling with the child harms him. If one of them moves to a country to settle there, and the road is feared or the country he moves to is feared, the one who stays has priority in custody: traveling with the child poses a danger to him, and even if the child chooses travel in this situation, it is not carried out for him, for it would be a deception of him. If the country he moves to and its road are safe, the father has more right to him, whether he is the one who stays or the one who moves: it is he indeed who undertakes his discipline, his formation and the preservation of his lineage; if the child is not in his father's country, he is lost, unless the two countries are near enough that the father sees them every day and they see him: the mother then keeps the child, being the most compassionate, and the father's consideration of him remains possible. All this, if the traveler does not intend, by taking the child, to harm the other; otherwise the mother has more right, as mentioned by Shaykh Taqi al-Din and Ibn al-Qayyim (may Allah have mercy on them both). And if both parents move together to a single country, the mother remains in possession of custody; likewise if the father takes the child: the two countries having separated and then reunited, custody returns to the mother; the other women entitled to custody stand in the mother's place, and the child's other agnates stand in the father's place in their absence, or if they are not among the people of custody (al-Mughni, 8/193-194; Sharh Muntaha al-Iradat, 5/697; Kashshaf al-Qina', 5/588-589; Manar al-Sabil, 3/210-211; Jami' Masa'il of Ibn Taymiyya, 3/422-423).
As for Imam Ibn al-Qayyim, like Ibn Hazm (may Allah have mercy on them both), both held that the child does not pass to the father when the father travels and leaves his country. Imam Ibn al-Qayyim (may Allah have mercy on him) said: it is "an invalid trick to strip the mother of her right of custody." Among the invalid, unlawful tricks is for the father to want to strip the mother of custody by traveling outside her country, so that the child follows him. This trick contradicts what the Lawgiver intended: he gave the mother precedence over the father despite the nearness of the dwelling and the possibility of meeting at any time; he ruled that no mother should be deprived of her child, and he informed that whoever separates a mother from her child, Allah will separate between him and his beloved on the Day of Resurrection; he forbade selling the mother apart from her child, or the child apart from his mother, even in one country. How, after all this, can a trick of separation between her and her child be admitted, a separation that would make the sight of him and meeting him rare, and make the patience of losing him unbearable to the mother? This is among the most impossible of the impossible. The judgment of Allah and His Messenger is more rightful: the child belongs to his mother, whether the father travels or stays. The Prophet (peace and blessings of Allah be upon him) said to the mother: "You have more right to him so long as you do not marry": how could it be said: "You have more right to him so long as the father does not travel"? Where is this in the Book of Allah, or in the Sunna of the Messenger of Allah (peace and blessings of Allah be upon him), or in the opinions of his Companions, or in sound analogy? No text, no analogy, no benefit (I'lam al-Muwaqqi'in, 3/295).
Such are the conditions that both parents share. If the mother is not among the people of custody, through the loss of some or all of the conditions mentioned, she is as if nonexistent, and custody passes to whoever follows her in order of entitlement; if both parents are not among the people of custody, it passes to whoever follows them: they are indeed as if nonexistent (al-Mughni, 8/191). There is, moreover, a condition specific to the mother.
The people of knowledge agreed that when the mother separates from her husband, she has more right to her child than the father if the preceding conditions are met in her (reason, upright conduct, sound judgment, absence of relocation), so long as the child has not reached the age of discernment, by what 'Amr ibn Shu'ayb narrated from his father from his grandfather Abdallah ibn 'Amr:
A woman said: O Messenger of Allah, this son of mine: my womb was a vessel for him, my breasts a bucket, and my lap a container; his father divorced me and wants to snatch him from me. The Messenger of Allah (peace and blessings of Allah be upon him) said to her: "You have more right to him so long as you do not marry."Hasan hadith narrated by Abu Dawud (2276) and Ahmad (6707)
Abu Ayyub (may Allah be pleased with him) said: I heard the Messenger of Allah (peace and blessings of Allah be upon him) say: "Whoever separates a mother and her child, Allah will separate between him and his beloved on the Day of Resurrection."Authentic hadith narrated by al-Tirmidhi (1566)
The slave woman or the captive, indeed, with whom the child is not separated, the free woman has all the more right to this (Bidayat al-Mujtahid, 2/43). It has likewise been judged that Abu Bakr al-Siddiq (may Allah be pleased with him) ruled that 'Asim ibn Umar ibn al-Khattab would remain with his mother Umm 'Asim, and said to Umar: "Her scent, her perfume and her tenderness are better for him than you." This report is weak: Sa'id ibn Mansur in his Sunan (1/303, no. 2272). A great number of scholars have moreover transmitted consensus on this rule.
Imam Ibn al-Mundhir (may Allah have mercy on him) said: all those whose opinions we retain among the people of knowledge agreed that when the two spouses separate while they have a young child, the mother has more right to him so long as she does not remarry. Among those from whom we retain this are Yahya al-Ansari, al-Zuhri, Malik, al-Thawri, al-Shafi'i, Ahmad, Ishaq, Abu Thawr and the people of opinion (ra'y). And this is our view.
It has also been transmitted to us that Abu Bakr al-Siddiq judged against Umar ibn al-Khattab, ruling that 'Asim would remain with his mother Umm 'Asim, and said: "Her embrace, her scent and her touch are better for him than you, until he grows up and chooses." Imam Ibn Hubayra (may Allah have mercy on him) said: they agreed that custody belongs to the mother so long as she does not remarry (al-Ifsah, 2/213). Imam al-Khattabi (may Allah have mercy on him): they did not differ over the fact that the mother has more right to the young child than the father so long as she does not remarry (Ma'alim al-Sunan, 3/282). Imam Ibn Abd al-Barr (may Allah have mercy on him): I know of no disagreement between the early scholars and the later ones that the divorced woman, so long as she does not remarry, has more right to her child than his father, so long as he is a small child who discerns nothing, while she is in a protected place and has sufficiency, and no immorality is established against her (al-Istidhkar, 7/290; al-Ishraf, 5/171; al-Ijma', 393).
Ibn Qudama (may Allah have mercy on him) said: when the two spouses separate while they have a young child or one who is impaired, his mother is the most deserving of people to have his custody if the conditions are met in her, whether he is a boy or a girl. This is the view of Yahya al-Ansari, al-Zuhri, al-Thawri, Malik, al-Shafi'i, Abu Thawr, Ishaq and the people of opinion, and we know of no one who differed with them. She is indeed closest to him and most compassionate toward him; only his father shares this nearness with her, without matching her compassion: he moreover does not undertake it himself, but hands the child over to his wife, whereas his mother is worthier than the father's wife (al-Mughni, 8/190-191). The Shaykh of Islam Ibn Taymiyya (may Allah have mercy on him): as for the mother's precedence over the father regarding the young child's right, it is an agreed fact (Jami' Masa'il, 3/425). Imam Ibn al-Humam (may Allah have mercy on him): the mother therefore has more right to the child by consensus (Sharh Fath al-Qadir, 4/367).
Imam al-Zayla'i (may Allah have mercy on him) said: she was given precedence because the community agreed that the mother has more right to the child so long as she does not remarry, meaning with another husband. The young, indeed, being unable to manage their interests, the Law entrusted their guardianship to others: it gave the guardianship of disposal over person and property to the fathers, who are strongest in judgment along with complete compassion, and made maintenance obligatory upon them as those most able to pay it; and it gave custody to the mothers, who are the most compassionate, the most gentle, the most capable and the most patient in bearing the hardships that the child brings over long years, and the most free to devote themselves to his service. Entrusting custody to them, and the other interests to the fathers, is thus an additional benefit for the child: it was therefore good and more attentive to him, and it became a sound institution. This is why Abu Bakr said to Umar, when he separated from his wife: "Her scent, her touch, her caress and her saliva are better for him than your milk"; and no one objected to it: it was therefore a consensus (Tabyin al-Haqa'iq, 3/46-47).