Islamic Fiqh > Marriage and family > The pillars and conditions of nikah > The legal rulings of the imprecation (li'an)
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Updated on 25 September 2026 at 3:23 PM
This part belongs to the full section: All sections of this part.
(The sheet opens with the end of the preceding discussion.) That is why guardianship is not established over him, and the imprecation is permitted concerning the prophets (peace be upon them); and the one who suffers intermittent madness keeps his guardianship, for the loss of his reason is not permanent: it is like fainting ("Al-Mughni", 7/16; see also "Bada'i' as-Sana'i'", 2/239; "Al-Ikhtiyar", 3/120; "Mukhtasar al-Waqi'ah", 1/356; "Al-Jawharah an-Nayyirah", 4/300; "Al-Lubab", 2/30; "At-Taj wa-l-Iklil", 2/504; "Mawahib al-Jalil", 5/73; "Sharh Mukhtasar Khalil", 3/187; "Ash-Sharh al-Kabir" with "Hashiyat ad-Dasuqi", 3/28; "Tathbir al-Mukhtasar", 2/567; "Al-Bayan", 9/169; "Rawdat at-Talibin", 4/701; "Kunz ar-Raghibin", 3/557; "An-Najm al-Wahhaj", 7/85; "Mughni al-Muhtaj", 4/258; "Kashshaf al-Qina'", 5/56-57; "Manar as-Sabil", 2/559).
The third condition: free status. The jurists of the four schools affirmed that free status is a condition in the guardian; the slave has no guardianship, for he has no authority over himself, how then over another? And because guardianship indicates ownership: how could a single person be owner and owned at the same time? For this is a guardianship of consideration and interest, and the interests of marriage cannot be grasped except by reflection and deliberation; the slave, occupied in the service of his master, cannot devote himself to reflection and deliberation, and thus does not know whether the marriage he concludes is beneficial (same references as above, with "Al-Mughni", 7/17).
The transmitters of the Maliki traditions said concerning the mute man: he receives the legal punishment and does not perform the imprecation; Ibn al-Qasim said it once, and al-Makhzumi and Ibn Dinar said it as well. And they said: if he denies a pregnancy without claiming the waiting period of purity (istibra'), the punishment is applied to him and the child is attributed to him. Ibn al-Qasim said another time: if he accuses or denies a pregnancy, he performs the imprecation and uncovers nothing; Ibn Nafi' said it likewise ("Tahdhib al-Mudawwanah", 1/342; "Manh al-Jalil", 4/273).
Al-Hattab (may Allah have mercy on him) reported that Ibn 'Arafa said: there is no explicit text on his ruling. Ibn 'At reported: Ibn al-Hindi performed the imprecation and was rebuked for it; he then said: I intended to revive a Sunnah that had faded. The truth is that, if it concerns denying a lineage, the imprecation becomes obligatory; otherwise it is better to abandon it by abandoning its cause. If it occurs truthfully, it is obligatory, by the obligation of repelling the scandal of the accusation and its punishment; then I found a similar statement in the "Siraj" of Ibn al-'Arabi. I say: the "Jawahir" contains an allusion in this sense, its text being: the husband is like a stranger in accusation, except in some matters: it may be permitted to him, and it may become obligatory by the necessity of repelling a lineage that is not his. He said in the "Lubab": its ruling is permissibility, according to the hadith of 'Uwaymir. Al-Burzuli said: Ibn al-Hindi's statement "a Sunnah that had died" refers to the form of the imprecation; Allah sufficed the people by what He mentioned in the Quran, and concealment is better; he covered himself with these words when he was rebuked. It occurred in the time of the amir Yahya in the Zaytunah mosque, and then occurred a second time; there is nothing strange in the occurrence of its cause in that time, given the multiplication of corruptions: we seek refuge in Allah from the trials, the manifest and the hidden. He said in the "Tiraz": his imprecation against her took place in the great mosque of Cordoba, in the year 338 ("Mawahib al-Jalil", 5/368).
The Shafi'is said: the husband may accuse his wife if he knows her adultery by having seen her commit the act with his own eyes; but it is better for him to divorce her in order to cover her, because of the concealment of the disgrace and the warding off of the stumble, unless the separation entails harm for him or for her, such as illness; it may even become obligatory if it is certain that, should he leave her, another will commit adultery with her, and that with him she is protected from that.
Likewise, it is permitted for him to accuse her if he holds her adultery with a conviction equal to knowledge, such as when it has spread among the people that she commits adultery with such a one, together with a corroborating sign:
In these situations, the accusation is not obligatory, and if he keeps her, that is not forbidden to him, according to what Ibn Abbas (may Allah be pleased with them both) reported: a man came to the Prophet (peace and blessings be upon him) and said:
O Messenger of Allah, my wife does not repel the hand of any man who touches her. He said: "Divorce her." He said: I love her and she is beautiful. He said: "Then enjoy her." In a narration: "Then keep her."Authentic hadith, reported by Abu Dawud (2049) and an-Nasa'i (3229, 3464)
The meaning of "she does not repel the hand of a man who touches her" is that she answers whoever desires her; and the Prophet (peace and blessings be upon him) feared that, were he to make her divorce obligatory, his soul would turn to her and he would fall into the unlawful.
Abdallah ibn Mas'ud (may Allah be pleased with him) said:
We were in the mosque on the night of Friday when a man of the Ansar came and said: if a man found a man with his wife and spoke, you would flog him; if he killed, you would kill him; if he kept silent, he would remain silent in vexation. By Allah, I shall ask the Messenger of Allah (peace and blessings be upon him) about it. The next day he came to the Messenger of Allah and asked him: if a man found a man with his wife and spoke, you would flog him; if he killed, you would kill him; if he kept silent, he would remain silent in vexation. He said: "O Allah, make it manifest", and he kept invoking. The verse of the imprecation came down: "And those who accuse their wives [of adultery] and have no witnesses except themselves..." (Surah An-Nur, 6). That man was therefore singled out for the trial among the people; he came with his wife to the Messenger of Allah (peace and blessings be upon him) and they invoked mutual curses. The man testified four times by Allah that he was among the truthful, then cursed on the fifth, saying that the curse of Allah be upon him if he was among the liars. She was about to imprecate, but the Messenger of Allah (peace and blessings be upon him) said to her: "Wait." She refused and imprecated. When they turned away, he said: "Perhaps she will deliver him black with curly hair." And she delivered him black with curly hair.Reported by Muslim (1495)
He had thus mentioned that he speaks or keeps silent, and the Prophet (peace and blessings be upon him) did not condemn him for it.
This applies when there is no child there whose denial is obligatory; in that case the imprecation becomes obligatory: when she delivers or carries a child he knows is not from him, or whose denial he holds with firm conviction and whose attribution is outwardly possible, it becomes incumbent upon him to deny it; for leaving the denial implies attribution, and it is not permitted for him to attribute to himself what is not from him, just as it is not permitted for him to deny the one who is from him; these are two of the greatest, gravest and ugliest of the major sins, because of the harms that follow from them.
According to a view regarded as weak: it is permitted without being obligatory, for embarking upon the imprecation is a public exposure and a disgrace hard for men of honor to bear.
If he knows her adultery but the child's attribution to him or to the adultery remains possible, the denial becomes forbidden on account of the mere possibility; for we have been commanded to attribute the child to the bed, and one may not assail the cause of a possibility.
Likewise, in this situation, accusation and imprecation are forbidden according to the sound position; for attributing her to adultery exposes the child to blame, and tongues may be loosed about him, causing him harm.
The second view: it is permitted, in retaliation against her and to expose her to the punishment, as when there is no child ("Al-Bayan", 10/401, 404; "Rawdat at-Talibin", 5/653, 657; "An-Najm al-Wahhaj", 8/98, 103; "Mughni al-Muhtaj", 5/64-65; "Tuhfat al-Muhtaj", 9/721, 723; "Nihayat al-Muhtaj", 7/129, 131; "Ad-Dibaj", 3/531-532).
Imam al-Mawardi (may Allah have mercy on him) said: the lawfulness of the imprecation being established with every accusation, the legal punishment becomes obligatory in its like; the state of the wife therefore falls under two situations: she is either not pregnant or pregnant.
If she is not pregnant, her state divides into three cases. The first: it is permitted for him to accuse her and imprecate against her, in four situations: either he sees her committing adultery; or she confesses the adultery before him; or a trustworthy man informs him of her adultery and his truthfulness settles in him; or it has spread among the people that she commits adultery, and he sees, together with this report, a man leaving her place at suspect hours, thus confirming the truth of the report. In these four situations, it is permitted for him to accuse her of adultery and imprecate against her; if he abstains from accusing her and imprecating, it is permitted, and the two remain in the marital bond and the state of permission, according to the hadith of the man whose wife did not repel the hand of any man who touched her, cited above: the Prophet allowed him to keep her despite the adultery he had alluded to.
The second case: the one in which it is not permitted for him either to accuse her or to imprecate against her: this is the chaste wife, the one he has not seen committing adultery, who has not confessed, whose adultery has not spread among the people, and whom no trustworthy man has denounced. It is then not lawful for him to accuse her or imprecate against her. Allah said:
"Indeed, those who came with falsehood are a group among you. Do not think it bad for you; rather it is good for you. For every person among them is what [punishment for] the sin he has earned, and of the one who took upon himself the greater portion thereof - for him is a great punishment"
Surah An-Nur, 11
This verse was revealed concerning the slander (ifk) against Aisha (may Allah be pleased with her), and its ruling is general.
The third case: the one over the permissibility of accusing her and imprecating against her there is disagreement: it is when her adultery has spread among the people, without his seeing, together with this report, any man entering upon her or leaving her. Two views: the first, it is permitted, for the widespread report is stronger than the report of a single man, even if trustworthy; and just as the widespread report may constitute, in the qasamah, a collective oath sworn upon killing, it may figure among the evidences of the accusation. The second - the view of Abu Hamid al-Isfara'ini: it is not permitted, for this report may spread from a single person lying about her. The first of the two views is more apparent to me. If he sees a man leaving her place, it is not permitted for him to accuse her: he may have left for a need, or entered upon her and she refused him. Such is the ruling concerning the non-pregnant wife.
As for the pregnant wife, her state divides into five cases. The first: the imprecation is obligatory upon him without accusation: this is when she delivers a child while he has not entered upon her; it is then obligatory for him to imprecate against her in order to deny a child he knows with certainty is not his, so as not to attribute to his bed someone whose lineage does not suit him, who would render his daughters forbidden while they are not close kin to him; the imprecation is permitted for him without accusation, for the child may be from a previous husband or the fruit of a violation she suffered: she is then not an adulteress.
The second case: the imprecation is obligatory upon him but after the accusation: this is when he has had intercourse with her, kept her in the waiting period of purity (istibra'), found with her a man committing adultery, and then she returns pregnant. It is then obligatory for him to imprecate, according to the explanation given, so that no one of unsuitable lineage be attributed to him; but he cannot imprecate without having accused her: the accusation therefore becomes obligatory because of the obligation of the imprecation, which is not valid without it; were it not for the pregnancy, it would not have been obligatory upon him.
The third case: he has the choice between imprecating against her or keeping her: this is when he has had intercourse with her without keeping her in istibra' and saw a man committing adultery with her. He then has the choice between the imprecation after the accusation or retention. As for the denial of the child: if he strongly inclines to the view that it is not his, he may deny it; if he strongly inclines to the view that it is his, he may not deny it; if he inclines to neither conviction, he may let the ruling of resemblance (shubah) prevail in the denial, because of the adultery he witnessed; for the Prophet (peace and blessings be upon him) gave effect to resemblance concerning the wife of Hilal ibn Umayyah upon her delivery, saying: "Were it not for the oaths, I would have had a special matter with her."
The fourth case: it is not permitted for him either to imprecate against her or to deny her child: this is when he has had intercourse with her, has not seen her commit adultery, has not been informed of it, and sees in her child no objectionable resemblance. Her imprecation and the denial of her child are then forbidden to him, according to what Abu Hurayrah reported from the Prophet (peace and blessings be upon him):
Any woman who brings among a people one who is not of them has no share in Allah, and Allah will not admit her into Paradise; and any man who denies his child that he sees, Allah veils Himself from him and disgraces him before the first and the last.Reported by Abu Dawud (2263), Ibn Majah (2743), Ibn Hibban in his "Sahih" (4108) and al-Hakim in "Al-Mustadrak" (2814)
The fifth case: the one over the permissibility of imprecating against her there is disagreement: when she delivers a child darker than two white parents, or fairer than two black parents, without his seeing her commit adultery or being informed of it. Two views on the permissibility of the imprecation and the denial: the first, it is permitted, for the Prophet (peace and blessings be upon him) said: "If she delivers him with such a description, I see nothing but that her word is true", thus giving effect to resemblance. The second - the more correct: it is not permitted for him to imprecate nor to deny her child, according to what Sa'id ibn al-Musayyib reported from Abu Hurayrah: a man of Banu Fazarah came to the Messenger of Allah (peace and blessings be upon him) and said:
O Messenger of Allah, my wife has delivered a black boy. He said: "Do you have camels?" He said: yes. He said: "What color are they?" He said: reddish. He said: "Are there among them ashy-gray ones (awraq)?" He said: yes. He said: "How does that come about?" He said: perhaps a vein (irq) has drawn it off. He said: "So it is with this one: perhaps a vein has drawn it off."Reported by al-Bukhari (4999, 6455) and Muslim (1500)
That is: perhaps among his ancestors there is someone to whom this resemblance returned; and Allah knows best ("Al-Hawi al-Kabir", 11/16, 18).
The imprecation is a legislated measure established by the Book and the Sunnah, upon which the ummah agreed.
As for the Book, it is the statement of Allah:
"And those who accuse their wives [of adultery] and have no witnesses except themselves: then the witness of one of them [shall be] four testimonies [swearing] by Allah that indeed, he is of the truthful. And the fifth [oath will be] that the curse of Allah be upon him if he should be among the liars. But it will prevent punishment from her if she testifies four times [by] Allah that indeed, he is of the liars. And the fifth [oath will be] that the wrath of Allah be upon her if he was of the truthful"
Surah An-Nur, 6-9
As for the Sunnah, there is the hadith of Ibn Abbas (may Allah be pleased with them both):
Hilal ibn Umayyah accused his wife before the Prophet (peace and blessings be upon him) concerning Sharik ibn Sahma'. The Prophet said: "The proof, or the punishment upon your back." He said: O Messenger of Allah, if one of us sees a man upon his wife, would he go in search of proof? The Prophet repeated: "The proof, otherwise the punishment upon your back." Hilal said: by Him who sent you with the truth, I am truthful, and Allah will surely send down what will absolve my back from the punishment. Jibril then came down with the verse: "And those who accuse their wives" (Surah An-Nur, 6), which he recited up to "if he is of the truthful" (Surah An-Nur, 9). The Prophet (peace and blessings be upon him) went away, had her summoned, and Hilal came and testified, while the Prophet said: "Allah knows that one of you two is a liar; is there any of you who repents?" Then she rose and testified; when she reached the fifth, they stopped her and said: this one entails the punishment. Ibn Abbas said: she leaned back and held back, to the point that we thought she would retract; then she said: I will not disgrace my people today, and she went away. The Prophet said: "Watch her: if she delivers him with black eyes, full hips and plump calves, he is the son of Sharik ibn Sahma'." She delivered him thus. The Prophet said: "Were it not for what has passed of the Book of Allah, I would have had a special matter with her."Reported by al-Bukhari (4470)
In the narration of 'Ikrimah from Ibn Abbas (may Allah be pleased with them both):
Hilal ibn Umayyah - one of the three men whose repentance Allah accepted - came one evening from his land and found a man with his family; he saw him with his eyes and heard him with his ears, without driving him out until morning. Then he came to the Messenger of Allah (peace and blessings be upon him) and said: O Messenger of Allah, I came to my family in the evening and found a man with them: I saw with my two eyes and heard with my two ears. The Messenger of Allah was displeased by what he brought, and the matter weighed heavily upon him; then there came down: "And those who accuse their wives [of adultery] and have no witnesses except themselves: then the witness of one of them..." (Surah An-Nur, 6), the two verses. Relief came to the Messenger of Allah, who said: "Receive glad tidings, O Hilal: Allah has made for you a way and an outlet." Hilal said: I had hoped that from my Lord. He said: "Send for her." She came. The Messenger of Allah recited to them both, reminded them and told them that the punishment of the Hereafter is harder than that of this world. Hilal said: by Allah, I spoke the truth about her. She said: he lies. He said: "Invoke curses upon one another." It was said to Hilal: testify; he testified four times by Allah that he was among the truthful. At the fifth, it was said to him: O Hilal, fear Allah, for the punishment of this world is lighter than that of the Hereafter, and this fifth declaration draws upon you the punishment. He said: by Allah, Allah will not punish me for it as He did not flog me for it; and he testified the fifth: that the curse of Allah be upon him if he was among the liars. Then it was said to her: testify; she testified four times by Allah that he was among the liars. At the fifth, it was said to her: fear Allah, for the punishment of this world is lighter than that of the Hereafter and this fifth declaration draws upon you the punishment. She hesitated for an hour, then said: by Allah, I will not disgrace my people; and she testified the fifth: that the wrath of Allah be upon her if he was among the truthful. The Messenger of Allah (peace and blessings be upon him) separated them and judged that her child would not be attributed to any father, that she would not be accused nor her child, and that whoever accused her or her child would incur the legal punishment. He also judged that she would have neither dwelling with him nor maintenance, for they separate without divorce or death. He said: "If she delivers him fair-skinned, with woolly hair, a prominent nose and thick calves, he is Hilal's; and if she delivers him ashy-gray (awraq), with hair curled like the fleece of camels, full hips and plump calves, he belongs to the one she was accused with." She delivered him ashy-gray, with hair curled like the fleece of camels, full hips and plump calves. The Messenger of Allah (peace and blessings be upon him) said: "Were it not for the oaths, I would have had a special matter with her." 'Ikrimah said: he later became governor of Egypt, and the child was never attributed to a father.Reported by Abu Dawud (2256)
Wrath is mentioned against her because women often use cursing: the mention of wrath is more inciting of truthfulness for them.
As for consensus: the ummah agreed upon the lawfulness of the imprecation. Imam an-Nawawi (may Allah have mercy on him) said: the Book and the Sunnah came with the imprecation, and the ummah agreed upon it; as for the one upon whom the verse of the imprecation descended, there is disagreement ("Tahdhib al-Asma'", 3/305). Qadi Abd al-Wahhab (may Allah have mercy on him) said: the imprecation is established by the proof of the Book, the Sunnah and consensus; after citing the verses and hadiths, he said: therein is a mode of meaning: lineage is attributed to the bed, and the man cannot establish proof; yet he needs to deny a lineage that is not his. A way was therefore opened for him to deny it: the imprecation; without it, he would have no means of cutting it off from himself, and the lineages would be corrupted, the sound mixing with the corrupt ("Al-Ma'unah", 1/610).
The basis of the lawfulness of the waiting period and the proof of its obligation are the Book, the Sunnah and the consensus of the ummah.
As for the Book: His statement:
"And divorced women shall wait [as regards their husbands] for a period of three menstrual courses"
Surah Al-Baqarah, 228
His statement also:
"And those who no longer expect menstruation among your women - if you doubt, then their period is three months, and [also for] those who have not menstruated. And for those who are pregnant, their term is until they give birth"
Surah At-Talaq, 4
And His statement:
"And those who are taken in death among you and leave wives behind - they, [the wives], shall wait four months and ten [days]"
Surah Al-Baqarah, 234
As for the Sunnah, it is abundant, among which is what the two shaykhs (al-Bukhari and Muslim) reported from Humayd ibn Nafi' from Zaynab bint Abi Salamah, who said:
I entered upon Umm Habibah, the wife of the Prophet (peace and blessings be upon him), and she said: I heard the Messenger of Allah (peace and blessings be upon him) say: "It is not lawful for a woman who believes in Allah and the Last Day to mourn a deceased person more than three nights, except for a husband: four months and ten days." Then I entered upon Zaynab bint Jahsh when her brother died; she called for perfume, applied it, then said: I have no need of perfume, except that I heard the Messenger of Allah (peace and blessings be upon him) say, upon the minbar: "It is not lawful for a woman who believes in Allah and the Last Day to mourn a deceased person more than three nights, except for a husband: four months and ten days."Reported by al-Bukhari (1222) and Muslim (1486)
Abu Bakr ibn Abi al-Jahm said:
I heard Fatimah bint Qays say: my husband, Abu 'Amr ibn Hafs ibn al-Mughirah 'Ayyash ibn Abi Rabi'ah, sent me my divorce and sent with it five wasq of dates and five wasq of barley. I said: have I no maintenance besides this? And may I not spend my waiting period in your house? He said: no. So I tightened my clothes and came to the Messenger of Allah (peace and blessings be upon him), who said: "How many times has he divorced you?" I said: three times. He said: "He spoke the truth: you have no maintenance. Spend your waiting period in the house of your cousin Ibn Umm Maktum: he is blind, and there you may lay aside your garment. When your waiting period ends, inform me." Suitors among them proposed marriage to me: Mu'awiyah, Abu al-Jahm. The Prophet (peace and blessings be upon him) said: "Mu'awiyah is a man of the desert with little means, and Abu al-Jahm is harsh with women - or beats women, or the like -, but take Usamah ibn Zayd."Reported by Muslim (1480)
As for consensus: a number of scholars transmitted the agreement upon the obligation of the waiting period in general. Imam Ibn Qudamah (may Allah have mercy on him) said: the ummah agreed upon the obligation of the waiting period in general; they differed only over some of its types ("Al-Mughni", 8/78). Imam ad-Damiri (may Allah have mercy on him) said: the basis of it is consensus and the reports ("An-Najm al-Wahhaj", 8/123). Al-Khatib ash-Shirbini (may Allah have mercy on him) said: its basis, before the consensus, is the verses and the reports of this chapter ("Mughni al-Muhtaj", 5/83). Imam al-Bahuti said: its basis is consensus, whose proof is the Book and the Sunnah ("Kashshaf al-Qina'", 5/481).
Custody has been defined as follows. It is said: the preservation of the one who cannot manage his own affairs, such as an insane elder, and his upbringing with what benefits him and wards off what harms him, until he can manage himself ("Ash-Sharh al-Kabir" with "Hashiyat ad-Dasuqi", 3/508; "Mughni al-Muhtaj", 5/190; "Tuhfat al-Muhtaj", 10/242; "Al-Insaf", 9/416). And it is said: his preservation from what harms him and his upbringing through the washing of his head, his body and his clothes, the application of oil, the kohl of the eyes, fastening him in the cradle and rocking him to sleep, and everything pertaining to his interests ("Al-Insaf", 9/416; "Kashshaf al-Qina'", 5/583).
The ruling of custody: the care of the child and his custody are obligatory according to the Law; for the child in custody would perish if deprived of it: it is therefore obligatory to preserve him from perdition, as it is obligatory to spend upon him and to rescue him from perils. Its ruling is the individual obligation if there is no one else to keep him, even a stranger to the child; and the collective obligation (kifayah) when there are several persons able to do so. That is why, when a group finds an abandoned child, it is obligatory for them to take him up and keep him; once some undertake it, it falls from the others, as with all collective obligations.
Ibn Rushd and al-Matiti transmitted the consensus upon the obligation of taking charge of young children; for it is a weak creature that needs a caretaker to raise it until it can fend for itself: it is a collective obligation, which falls once someone undertakes it; it is obligatory only upon the father and the mother during the nursing period if it has neither father nor wealth, or if it is a child that accepts no other wet nurse ("At-Taj wa-l-Iklil", 3/258; "Mawahib al-Jalil", 5/470; "Al-Fawa'ih ad-Dawani", 2/66; "Al-Mughni", 8/190; "Manar as-Sabil", 3/208).
The basis of custody is the statement of Allah:
"And say: My Lord, have mercy upon them as they brought me up [when I was] small"
Surah Al-Isra, 24
as well as the hadiths that follow. The custody of the child ends at the age of discernment (tamyiz); the care given thereafter until puberty is called sponsorship (kafalah), not custody ("Mughni al-Muhtaj", 5/190). Custody is established for the young child, by agreement of the jurists, until puberty. They differed concerning the insane and the mentally deficient: is custody established for them or not? The majority of the jurists - the Hanafis, the Malikis according to one position, the Shafi'is and the Hanbalis - hold that it is established for the deficient and the insane. The Malikis, according to the well-known view, hold that the custody of the boy continues until puberty: if he reaches discernment or becomes insane, custody falls from the mother and continues with the father ("Ash-Sharh al-Kabir" with "Hashiyat ad-Dasuqi", 3/508; "Tathbir al-Mukhtasar", 3/433; "Al-Mughni", 8/191).
Those entitled to custody and their order: according to the generality of the jurists, custody belongs to women at one time, and to men at another; its basis is with the women, for they are more compassionate, gentler and better directed to the upbringing of the young ("Bada'i' as-Sana'i'", 4/41). Custody is then transferred to the men, for they are more capable of protection, safeguarding and securing the interests of the children. The custody of the child, so long as the marriage subsists between the two spouses, belongs to both parents; if they separate, custody belongs to the mother, without disagreement among the jurists, so long as she does not remarry, according to what 'Amr ibn Shu'ayb reported from his father from his grandfather Abdallah ibn 'Amr: a woman said:
O Messenger of Allah, my belly was this son's vessel, my breast his waterskin, my lap his resting place; his father has divorced me and wants to take him from me. The Messenger of Allah (peace and blessings be upon him) said to her: "You have more right to keep him so long as you do not remarry."Hasan hadith, reported by Abu Dawud (2276) and Ahmad (6707)
The jurists differed over the one entitled to custody after the mother, and over who is preferred in case of equality of right. Here is that detail, school by school.
The Hanafis said: when separation occurs between the two spouses while there is between them a young child, the mother is more entitled to keep him so long as she does not remarry; the mother is not compelled to custody, for she may be incapable of it. If there is no mother, or if she has remarried: the maternal grandmother, however distant, has precedence over the paternal grandmother; for she belongs to the mother's side, and this guardianship is derived from her: the one closest to her has precedence.
Failing that: the paternal grandmother, however distant, has precedence over the sisters, for she holds a guardianship: she is more engaged in the guardianship and more compassionate. Failing a grandmother: the sisters have precedence over the paternal and maternal aunts, for they are closer: they are the children of both parents, which is why they were preferred in inheritance; the most entitled is the full sister, then the uterine sister before the consanguine sister, then the consanguine sister; then the maternal aunts before the paternal aunts, by preference of the maternal kinship; they descend like the sisters, that is, those with double kinship are preferred.
There is no custody for the daughters of the paternal uncle, the maternal uncle, the paternal aunt and the maternal aunt; for one of the conditions of custody is that the woman be a close relative whose marriage is forbidden (mahram). If the boy has no woman of his family and the men dispute his custody, precedence goes to the closest of the 'asabah (agnatic relatives); likewise, when the child becomes self-sufficient or the girl reaches adulthood: the 'asabah have precedence over the two of them in the order of kinship: the father, then the grandfather, the father of the father, then the full brother, then the consanguine brother, as in inheritance. When those entitled to custody are of the same degree, the most devout has precedence, then the eldest. The paternal cousin and the maternal cousin have no right over the care of the girl, but have a right over the care of the boy; for they are not mahram to her and cannot therefore be entrusted with her in confidence ("Bada'i' as-Sana'i'", 4/41, 43; "Al-Ikhtiyar", 4/16-17; "Al-Jawharah an-Nayyirah", 5/72, 77; "Al-Lubab", 2/177, 179; "Mukhtasar al-Waqi'ah", 1/435-436).
The Malikis said: custody belongs to the mother if she is divorced or if her husband dies; it differs according to whether it is a boy or a girl. The custody of the confirmed boy - that is, the management of his affairs in his sleep and wakefulness until puberty: if he reaches discernment or becomes insane, custody falls from the mother, while maintenance continues to be owed by the father; it is upon him that the management of his right falls, and the mother's custody does not fall from the undiscerning child so long as he remains in that state. The custody of the girl - given that the husband may have intercourse with her - belongs to the mother even if she is a disbeliever, whether she is the divorced mother or the one whose husband has died; as for the wife still under the marital bond, custody is a right of both spouses.
If the mother no longer exists - deceased - the order is as follows: her mother, that is, the child's maternal grandmother; then her grandmother, that is, the grandmother of the mother, more entitled to custody than anyone else, however high. Failing that: his maternal aunt, his mother's sister. Failing that: his maternal grand-aunt, that is, his mother's maternal aunt. Failing that: his paternal grandmother, that is, the grandmother on the father's side, the father's mother; then her mother, then the mother of the father's father: the kinship on the side of the father's mother is preferred to that on the side of the father's father. Failing that: his father, that is, the father of the child in custody; then his sister, then his paternal aunt, then that aunt's sister on the father's side, then the father's maternal aunt, then the daughter of the child's brother - full, uterine or consanguine -, then likewise the daughter of his sister. Failing all those mentioned: the testamentary guardian (wasi); then the brother, full, uterine or consanguine; then the grandfather on the paternal side, the nearest; then the son of the child's brother, then the paternal uncle, then his son.
There is no custody for a maternal grandfather nor for a maternal uncle. In custody, the full relative - male or female - is preferred to the one related only through the mother, then to the one on the mother's side; for the one on the mother's side is more compassionate than the one on the father's side alone. Then comes the father's side for all the ranks where that is possible, such as brothers, uncles and their sons. In case of equality - two sisters, two maternal aunts or two paternal aunts - in care and compassion, the older is preferred ("At-Taj wa-l-Iklil", 3/258, 261; "Mawahib al-Jalil", 472, 473; "Sharh Mukhtasar Khalil", 4/208, 210; "Ash-Sharh al-Kabir" with "Hashiyat ad-Dasuqi", 3/508, 511; "Tathbir al-Mukhtasar", 3/438, 442; "Hashiyat as-Sawi", 176, 180).
The Shafi'is said: when a man separates from his wife and has from her a child, boy or girl, who has not reached the age of discernment, the mother is more entitled than the father to keep him.
If the child's mother no longer exists, or exists but refuses to keep him, the right of custody passes to those who come after the mother; the most entitled is the maternal grandmother, meaning any grandmother leading to the child through a woman: the nearest kinship is preferred to the more distant; then the father's mother, then her mothers, then the grandfather's mother. The child's sister is preferred to his maternal aunt; the maternal aunt to the daughter of his nephew and the daughter of his niece; the nephew's daughter and the niece's daughter to the paternal aunt; and the full sister to the consanguine or uterine sister.
The right of women to custody has precedence, for they are more fitting for it; but if there is no woman near the child, or if she refuses to keep him, the right of custody passes to the men: among them, the mahram heir is preferred in the order of inheritance, except the grandfather, who is preferred to the brothers; then the non-mahram heir, such as the cousin, likewise in the order of inheritance: the father, then the grandfather however high, then the full brother, then the consanguine brother, then the son of the full brother, then the son of the consanguine brother, then the full paternal uncle, then the consanguine paternal uncle, then the cousin son of the full uncle, then the cousin son of the consanguine uncle.
The nearest has been preferred to the more distant in the right of custody because the nearest is, in the most probable case, more compassionate than the more distant, and more careful of the right of maintenance, of good upbringing and of the welfare of the young. Custody is established for every mahram heir in the order of inheritance when they are together: the father, then the grandfather however high, then the full brother, then the consanguine brother, and so on; the grandfather is here preferred to the brother. If the keeping man lacks both inheritance and kinship, like the stranger, or inheritance without kinship, like the maternal uncle, the maternal aunt, the sister's son and the maternal cousin: there is no custody for them, because of the weakness of their kinship through the absence of inheritance, guardianship and reason.
When men and women among the child's relatives come together and dispute the custody, the mother is preferred, then the mothers of the mother, then the father, for he is the origin; then the grandmother, the father's mother, then the grandfather, the father's father; then the full sister, then the full brother, and so on. If they are equal in proximity, men and women - such as full brothers and full sisters -, the women are preferred to the men, for what has preceded: custody is more fitting for them and they are more suited to it. If they are only men or only women and dispute the custody, lots are drawn between them: the one whose lot comes out receives the child ("Rawdat at-Talibin", 6/115, 120; "An-Najm al-Wahhaj", 8/292, 296; "Mughni al-Muhtaj", 5/190, 194; "Tuhfat al-Muhtaj", 10/242, 249; "Nihayat al-Muhtaj", 7/260, 266; "Ad-Dibaj", 3/650, 653).
The Hanbalis said: the one most entitled to custody is the mother, because of her compassion, even against an equivalent payment while there is a volunteer for the nursing; and when the mother remarries, her custody falls. Then come her mothers (grandmothers), the nearest then the more distant, for they are in the meaning of the mother by the certainty of their birth. Then the father, for he is the origin of the lineage and more entitled to the guardianship of property. Then his grandmothers, for they point to a near 'asabah. Then the paternal grandfather, for he is in the meaning of the father. Then the grandmothers, the nearest then the more distant, for they point to an 'asabah. Then the full sister, for the strength of her kinship and her sharing in the lineage. Then the uterine sister, for she points by the mother like the grandmothers. Then the consanguine sister, for she stands in the place of the full sister and inherits her share. Then the maternal aunt, full, then uterine, then consanguine, for the maternal aunts point by the mother. Then the paternal aunts likewise: the full paternal aunt, then uterine, then consanguine, for they point by the father. Then the maternal aunts of his mother, then the maternal aunts of his father, then the paternal aunts of his father likewise; for they are women of the people of custody, preferred over those of their rank among the men, as the mother is preferred over the father. Then the daughters of his brothers and his sisters, then the daughters of his paternal uncles and his paternal aunts according to the preceding detail. Then the rest of the 'asabah, the nearest then the nearest: the brothers are preferred, then their sons, then the uncles, then their sons, then the uncles of the father, then their sons, and so on. If the one entitled to custody abstains from it, or if the one entitled to custody is unfit to keep, custody passes to the one who comes after; for the presence of the one who is unfit is like his absence ("Al-Mughni", 8/195, 198; "Kashshaf al-Qina'", 5/584, 586; "Sharh Muntaha al-Iradat", 5/693, 695; "Manar as-Sabil", 3/208, 210).
Imam Ibn Rushd (may Allah have mercy on him) holds that there is no reliable evidence for transferring custody from the mother to anyone other than the father. He said: as for the transfer of custody from the mother to someone other than the father, there is nothing in it to rely upon ("Bidayat al-Mujtahid", 2/43).
Imam Ibn Abidin (may Allah have mercy on him) held that custody cannot be wrested from the mother under any circumstance; it is the child who is considered: if it is better for him to be with his mother, even if she has remarried, he stays with her, and it behooves the judge to examine this and to rule according to what he sees as beneficial. He said: I say: the most correct is the detailed approach: when the custodian eats alone with her son, she has the right to custody; for the stranger has no way over her or over her child, unlike the case if she lives within the household of that stranger or is married to him. You know that the falling of custody in that case aims at warding off harm from the child: the mufti must therefore be perceptive in considering what is most beneficial for the child; for he may have a kinsman who hates him and wishes his death, while his mother's husband is compassionate and grieved by parting from him; the kinsman then wants to take him from her in order to hurt him and harm her, or to consume his maintenance, or the like. He may have a wife who harms him many times more than the stranger husband of his mother harms him, or children from whom temptation would be feared for the girl living among them. When the mufti or the judge knows such a thing, it is not lawful for him to wrest him from his mother; for the basis of custody rests upon the benefit of the child ("Hashiyat Ibn Abidin", 3/565).