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Fiqhi rights of a father to his children upon divorce

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Question 202: In the case of an Islam divorce, does the father have fiqhi rights to the children upon divorce? Does the mother have rights to keep the children until she remarries and then the children go to the father? Please, provide references.

Answer 202: According to Islam, the expenditures of the children are the responsibility of their father, although who has custody may vary depending on their age and gender.

Imam Khomeini says: “The custody of the son until two years of age and the daughter till seven years of age is the right of the mother, and after that the mother no longer has any rights regarding their custody and the father can take the children from there on. Nevertheless, the expenditures of the children are the responsibility of the father from the beginning. Also, if the mother gets married to another person during the period that she has custody, she will lose her right and the father will take custody of the children from there on.”[1]

Of course, during this time period, both the mother and father have the right to see their children.

Ayatollah Bahjat (ra) says: “During the time when the father or mother has custody of the children, if the other (who doesn’t have custody) wishes to see the child in order to give him/her something, solve his/her problems or just be beside him/her for a while, the other has no right to prevent such a thing from happening.”[2]

According to Fazil Miqdad and Allama Hilli, it is said that Sheikh Sadouq (ra) believed that kids are in custody of the mother until she marries, but we couldn’t find any reliable sources in this regards.[3]

Those traditions in which say that kids are in custody of the mother are as follows:

  1. Imam Sadiq (as):[4]

“«قال: سئل ابوعبدالله(ع) عن الرجل یطلق امراته و بینهما ولد ایهما احق بالولد؟ قال المراة احق بالولد ما لم تتزوج.»”

The above mentioned hadith is somehow more reliable than the following!

  1. The Holy Prophet (PBUH):
  2. «الام احق بحضانة ابنها ما لم تتزوج.»[5]
  3. «ان امراة جاءت الی رسول الله(ص) فقالت: یا رسول الله(ص) ان ابنی هذا کان بطنی له وعاء و ثدیی له سقاء وحجری له حواء وان اباه طلقنی واراد ان ینتزعه منی فقال: انت احق به مالم تنکحی.»[6]

It should be noted that those traditions in which say that the kid are in custody of her mother until at the age of seven years of old are Sahih.

These Hadith have the same meaning. Imam Sadiq has asked: if a man has divorced his wife and they have a child, the child is in custody of the father or mother? Imam replied: the mother until she marries. The two and third hadith were narrated from the Holy Prophet (PBUH) as He was asked in this regards and He replied as the same as Imam Sadiq (as).

For further information in this regards, please refer to the following answer:

Index: Permissibility of getting Divorce when your partner has lied, answer 295.

Index: Essential Requirements of a Successful Marriage in Islam, answer 515.

[1] . The Istifia’at (religious Q&A) of Imam Khomeini, vol. 3, pg. 209; also see: Ajwibatul-Istifta’at of Ayatullah Khamenei in farsi, question 1504, pg. 339.

[2] . Tawdhihul-Masa’el (of Imam Khomeini), vol. 2, pg. 516, issue 1986.

[3] . “al-Tanqih al-Raye”, Vol. 3, pg. 271; “Mokhtalif al-Shia”, Vol. 2, pg. 577.

[4] . Wasael al-Shia, Vol. 15, Pg. 191.

[5] . Jawaher al-Kalam, Vol. 31, Pg. 289.

[6] . Al-Fiqh al-Islami wa Adelatohu, Vol. 15, Pg. 192, Hadith 6.

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Impermissibility of confirming marriage tie with others during Iddah (waiting period)

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Question 554: Salam alaikum wa rahmatullahi wa barakatu. Thank you for this helpful and wonderful service. I have a question if you would be so kind to answer. If a lady is in iddah, is she allowed to talk to a man for the purpose of seeing if he will be a suitable husband after her iddah is over? Can she talk to him during iddah before he has formally proposed? Jazak Allah Khair and thank you

Answer 554: Divorce is of two types: Irrevocable divorce (Ba’in)[1] and revocable divorce (Rej’ie)[2]. And marriage proposal can be made directly or indirectly.

According to the Holy Quran and Islamic Law, a woman who is in her Rej’ie Iddah (waiting period) is not allowed to confirm the marriage tie with others whether directly or indirectly. Because, she is still considered as the wife of her husband, though she is allowed to be proposed indirectly during Ba’in Iddah.[3]

In this regards, Allah, the Most High says: “And there is no blame on you respecting that which you speak indirectly in the asking of (such) women in marriage or keep (the proposal) concealed within your minds Allah knows that you will mention them, but do not give them a promise in secret unless you speak in a lawful manner And do not confirm the marriage tie until the writing is fulfilled And know that Allah knows what is in your minds, therefore beware of Him And know that Allah is Forgiving, Forbearing”.[4]

Note: According to maraja (ha), all kinds of relations with a non-Mahram including joking, expressing mutual love, talking with the intention of deriving pleasure, looking at the body of a girl (except her face and hands up to the wrists) and at her hair or looking at her face with pleasure are haram (forbidden). In fact, if it is feared that they might fall into a sin, it is forbidden for them to have any kinds of relationship with each other. [5]

For further information regarding Ba’in divorce, please read the following:

The irrevocable divorce has five types:

1) The divorce of the woman who has not completed nine years of age.

2) The divorce of the menopausal woman (Yaa’isah) who has passed fifty years of age.

3) The divorce of the woman whom her husband had not had intercourse with her after the marriage.

4) The divorce of the woman who has been divorced three times.

5) The Khala’[6] and Mubarat[7] divorce.

Whatever is aside from these are the revocable divorce (Rej’ie).

[1] . Ba ‘in (Talaq-i): An irrevocable divorce after which a woman is free to conclude a contract of marriage with another husband, indeed, after completing the prescribed period called Iddah, and the husband divorcing her irrevocably cannot recall her except by contracting a fresh marriage with her subject to the restriction of the prescribed number of such remarriages by the same husband.

[2] . Meaning that it is permissible for the man to return to his wife during the seclusion (‘Iddah) without need of renewing the marriage contract.

[3] . Golpayegani, Sayyid Muhammad Reza, Majma al-Masael, Vol. 2, Pg. 256, Dar al-Quran al-Karim, Qom, second, 1409 A.H; Imami, Sayyid Hasan, Huquq Madani, Vol. 4, Pg.  270, Islamiyyah Publication, Tehran, Bita.

[4] . Surah Baqarah, verse 235.

[5] . The official website of the office of Sayyid Sistani, Chat between Male & Female

[6] . The divorce of a wife who develops an aversion from husband and hates him, and surrenders to him her Mahr or some of her property so that he may divorce her, is called Khula’ Divorce. The hatred must have reached a proportion where she would not allow him conjugal rights.

[7] . If the husband and the wife develop mutual aversion and hatred and the woman gives some property to the man so that he may divorce her, this divorce is called ‘Mubarat’.

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Permissibility of getting Divorce when your partner has lied

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Question 295: Salam, I am a shia- asnashari recently as per islamic gudielines I married a girl who claimed to be a syed, (had seen isteqara based on the name as given in profile but her name was different) after marriage I found that neither the girl is a syed, was married earlier and there is no compatablity and as this marriage is based on falsehood I want to divorce her, (dowry is not a issue as I have not demanded any thing before or after marriage I am financially well off and dont need any thing) I have paid the mehar at the time of marriage. what is the procedure of initiating a divorce. the marriage lasted less then a week and I have sent her home to her family. I had based this marriage on truth and had not hidden any facts with respect to my age, qualifications, family, income, etc. marriage from my side was based on facts and from her side was based on falsehood. please inform me how to get myself out of this mess.

Answer 295: The biggest capital in a couple’s life is truthfulness and honesty. If there is honesty in a family there would be no ground for any misunderstanding and misconception. The biggest problem can be ironed out through honesty and honest relationships.

On the other hand, wives and husbands must be kind to each other, have forgiveness and overlook the mistakes of one another in order to have a lovely and healthy living.

If the characteristics you’ve mentioned truly exist in their immoral sense in your wife, you should make her recognize such actions with soft, loving and kind words.

If she accepts her faults and truly ask forgiveness of Allah (SWT), then turn to Him you are recommended to forgive her, overlook [her ignorance] and live with each other, as in the holy Quran Allah, the Almighty says: “So pardon them and turn away Surely Allah loves those who do good (to others)”.[1]

Also, we as Muslim are supposed to follow what has been stated by the holy Prophet (pbuh). He (s) says: “The best of you is the one who is best among his family and I am the best to my family among you”.[2] So, you can overlook her ignorance and live together.

If you think it is impossible to live together in any way you are able to divorce her, because divorce is despised when it is done without an acceptable excuse, but if there is a good excuse for divorce, it will no longer be hated, and that is what divorce is for; for when there is no other way out.

How to get divorce:

Divorce is a one-sided contract (which is one of the unilateral obligations “iqa’at“) and it is carried out by the husband unilaterally even though the woman may not consent to it.” Therefore, a man can divorce his wife one-sidedly in accordance with the rules prescribed by the religion.

Divorce contract must be recited with the correct Arabic words in a way such that two just men listen to it. If the man wants to recite it by himself and his wife’s name is Fatimah, he should say:
“زَوْجَتِى فٰاطِمَةُ طالِقٌ”

Which means, my wife Fatimah is freed. If he appoints someone to recite it, the attorney should say[3]:[4]
“زَوْجَةُ مُوكِّلى فٰاطِمَةُ طٰالِقٌ”

For further information in this regards, please refer to the following answers:

Index: Living away from home for a long time is not considered as the reason for Divorce, answer 468.

Index: Conditions of divorce and Validity of getting divorce by SMS, answer 423.

[1] . Surah al-Maedah, verse 13.

[2] . Sheikh Saduq, Man la Yahduruhu al-Faqih, vol. 3, pg. 555, Jame’eh Mudarresin Publications, Qom, 1413 AH.

[3] . Imam Khomeini, Tawzih al-Masaeil (al-mohasha), ibid, p 522, question 2508, compiler: Bani Hashemi Khomeini, Syed Muhammad Hussain, the office of Islamic propagation, Qom, eighth edition, 1424 AH.

[4] . Adopted from answer 468 (Index: Living away from home for a long time is not considered as the reason for Divorce).