SECTION ON DIVORCE · 35 – WHO HAS THE RIGHT OF PRIORITY IN TAKING CUSTODY OF A CHILD?
2276 – It is narrated from ʿAmr ibn Shuʿayb, from his grandfather ʿAbdullah ibn ʿAmr: A woman said: O Messenger of Allah, my womb was a vessel for this son of mine, my breasts were his source of suckling, and my lap was his place of protection. His father divorced me and wants to take the child from me. The Messenger of God (peace and blessings be upon him) said to the woman, “You have more right to the child as long as you do not marry.”
EXPLANATION
Hıva: It means the place where something is protected. This hadith is evidence that as long as the woman does not remarry, she has more right to the protection and care of the child. If the mother marries or dies, her mother (the maternal grandmother) takes her place. For further details, refer to the chapter on Ḥiḍāna (custody) in fiqh.
2277 – Abū Maymūna Salma, who was known as a truthful person among the people of Medina, said: Once I was sitting with Abū Hurayra. A Persian woman came to him, accompanied by her son. (Both the man and the woman) claimed the child belonged to them. The woman's husband had divorced her. Abū Hurayra replied to her in a way she could understand, saying, "Draw lots for the child." The woman's husband came and said, "Who can claim a right over my child against me?" Abū Hurayra said, "I am not saying this for Allah's sake. But while I was sitting with the Messenger of God (peace and blessings be upon him), a woman came and said, 'O Messenger of Allah, my husband wants to take my son away. He watered me from the well of Abī Ināba and benefited me.' The Messenger of God (peace and blessings be upon him) said, 'Draw lots for him.' The woman's husband said, 'Who can claim a right over my child against me?' The Prophet (peace and blessings be upon him) said, 'This is your father and this is your mother. Take the hand of whichever one you wish.' The child took his mother's hand and went with her." [217]
EXPLANATION
Children who no longer need to be suckled are given the choice to select either their mother or father. According to the Ḥanafīs: a boy remains with his mother until he can eat and dress himself independently, and a girl remains until she reaches menstruation; after that, custody passes to the father. According to the Shāfiʿīs, when the child reaches seven or eight years old, he or she is given the choice to select either parent. Aḥmad ibn Ḥanbal said: when the child grows up, he or she is given the choice. Mālik said: girls remain with their mother until marriage, and boys until they reach puberty (iḥtilām).
2278 – It is narrated from ʿAlī (may Allah be pleased with him): Zayd ibn Ḥāritha had gone to Mecca. He brought the daughter of (the Master of Martyrs) Ḥamza. Jaʿfar (al-Ṭayyār) said, "I will take this child into my care; I have more right to her than any of you, for she is my uncle's daughter. Her maternal aunt is also with me (under my protection), and indeed the maternal aunt is like the mother." ʿAlī (may Allah be pleased with him) said, "I have more right to take this child into my care, for she is my uncle's daughter, and the daughter of the Messenger of God (peace and blessings be upon him) is with me (under my protection). The daughter of the Messenger of God (peace and blessings be upon him) has more right to her." Zayd ibn Ḥāritha said, "I have more right to take her into my care. I went to Mecca to bring her, I undertook the journey and brought her here." Immediately, the Messenger of God (peace and blessings be upon him) came out. (In the following part of the hadith, one of the narrators related from the Prophet and said: The Messenger of God (peace and blessings be upon him) said, "I judge that the girl should remain with Jaʿfar. Let her stay with her maternal aunt. The maternal aunt is indeed like the mother." [218]
EXPLANATION
Al-Bukhārī narrated this in the midst of a long hadith through the narration of Barāʾ ibn ʿĀzib. When Ḥamza was martyred at Uḥud, his daughter, known as Umm al-Faḍl, became an orphan. Jaʿfar al-Ṭayyār's wife, Asmāʾ bint ʿUmays, was the maternal aunt of Umm al-Faḍl. It was ruled that she should remain with her.
2279 – It is narrated from ʿAbd al-Raḥmān ibn Abī Laylā, though not in its entirety: The Messenger of God (peace and blessings be upon him) ruled that the child should remain with Jaʿfar and said, "The child's maternal aunt is with Jaʿfar."
2280 – It is narrated from ʿAlī (may Allah be pleased with him): When we left Mecca, (my uncle) Ḥamza's daughter followed us, calling out, "Uncle, uncle!" ʿAlī (may Allah be pleased with him) took her by the hand and said to (Fāṭima) (may Allah be pleased with her), "My uncle's daughter is with me." Fāṭima embraced her and recounted the incident. The narrator said: Jaʿfar said, "She is my uncle's daughter, and her maternal aunt is under my protection." The Messenger of God (peace and blessings be upon him) ruled that the child belonged to her maternal aunt, saying, "The maternal aunt is in the place of the mother." [219]