(#116)
Text message: “We are divorced by heart and soul”.
Separated for two years now
He won’t divorce me.
Khulla: What are my rights, and my kids rights.
Property
What can I keep and what do I return to him.
2 kids from him
Answer
بسم الله الرحمن الرحيم
السلام عليكم و رحمة الله و بركاته
حامدا و مصليا و مسلما
Muhtaramah
We are in receipt of your query regarding Talaaq. Our response is as follows:
In the altercation mentioned by you, if his exact words in the text message were as mentioned by you that, “We are divorced by heart and soul” then one Talaaq-e-raj’ee / revocable divorce had fallen. You ought to have observed Iddat for a period of three complete menstrual cycles from the time the Talaaq had been issued.
If during this Iddat period your husband took you back in his marriage either verbally (e.g. by saying but not restricted to “I have taken you back in my marriage”) or by his action (e.g. by touching you with desire etc) then you will once again be considered as his wife according to Shari’ah. However, if he had not taken you back in the Nikah than you have become estranged from him and your Nikah ties with him have been severed.
With regards to the children, the Islamic Jurists have mentioned that if the child is a male, the mother shall be awarded custody of the child until he reaches the age of seven and if it is a female, she will be awarded custody until the child reaches the age of nine.
Once the boy turns seven or in the case of a girl when she turns nine, the father will be awarded custody over him/her. Before the child reaches the said ages, the mother would retain her right of custody on condition that she does not, in the interim get married to a person who is a “Ghair-Mahram” (marriageable person) of the child. If she happens to get married to such a “Ghair-Mahram”, she will lose her right of custody and this right will then devolve upon the child’s maternal grandmother, paternal grandmother, sister, stepsister, maternal aunt and paternal aunt, etc., in that order of sequence; depending on whom of these relatives exist and if they are prepared to look after her; failing which the father will get custody. [N.B.: It must be borne in mind that these rules will apply only upto the stage that the child is not mature. Once the child attains puberty, he/she will be at liberty to choose which parent he/she wishes to live with].
Moreover, according to Islam, whichever parent has custody, that parent cannot refuse the other parent access to the child by denying him/her visitation rights. The extent of access and visitation should be arranged by way of mutual consultation and discussion. The basic guidelines in this regard are as follows-
While the child is in the one parent’s custody, the other parent will have the right in terms of Islamic Law, to go and visit the child even on a daily basis if he/she so wishes. This right of access and visitation cannot be denied to the non-custodian parent. However, this right of visitation entails that the non-custodian will only be allowed to go visit the children, while avoiding seeing or meeting the other parent (especially in the case where the couple are already divorced and estranged from each other). The non-custodian parent cannot compel the custodian parent to let the children go away with him/her daily even for a few hours. The non-custodian merely has the right to visit the children for a little while and then come away. [Ref: As-Shaami, Vol. 2, Pg. 885 ].
However, with the consent of the custodian parent, arrangements could be made to let the child spend some part/s of the school holidays (or any other mutually agreed time) with the non-custodian parent. If the custodian parent agrees, he/she could even allow the other parent to take the child away for a few hours each week. All or any of these arrangements would be permissible if done with mutual agreement and consent; it cannot be enforced in any way upon each other.
It must also be remembered that the best interest of the child will always be of paramount importance. Hence if the custodian parent begins to abuse or/and neglect the child while the child is in his/her custody or indulges in such action/s that will seriously impact on the religious and moral upbringing of the child, that parent will forfeit his/her right of custody of the child. [Ref: As-Shaami- Vol. 2, Pg. 872]
Note: However, if the environment is not conducive at the father’s house and that can cause harm to the education and upbringing of the child, the mother has the right of not allowing the father to take the child home while the child is in the mother’s custody. But this should be done and explained in a good manner.
Thus, if what you have mentioned is the true and sad state of affairs (i.e. his illicit relations and frequenting the dens of evils) , then your husband is not fit to be a custodian of his children as such immoral behaviour would have an adverse effect of the upbringing of the children. In such a case, if the boys are above seven and the girls above nine, then their father’s other blood relatives (such as their paternal grandfather, etc.) should look after them in separate living quarters so as to protect them from the father’s immoral influence. If for some reason, this is not possible and the children are being kept in the same house as their father; then, as such living conditions would be detrimental for the children’s’ upbringing, you as the mother would be awarded custody.
As far the maintenance of the child is concerned, the father will be solely responsible for the child’s maintenance (food, clothing, shelter and medical expenses) and educational expenses (Islamic and secular) while the child is in the mother’s custody and therefter too, when the child comes into the father’s custody (i.e. after the child reaches the prescribed age of seven in the case of a boy and nine in the case of a girl).
However, after the age of maturity, the child has the right of choosing where they want to stay as mentioned above. (Shaami vol. 3 pg: 568)
The father will be totally responsible for the maintenance of his children. As for a son, until he is capable of earning and for a daughter until she is married or she adopts some form of earning (Shaami vol.3 pg: 568, 612).
With regards to your rights in the property and goods, whatever items were under your name and ownership (this ownership includes any items gifted to you) will remain as your property and your property cannot be taken out of your possession unless with your permission. On the contrary, whatever items and property are under his name and ownership will remain in his ownership and they cannot be taken back and reclaimed.
We reiterate that the above answer is according to the information that you have provided us
And Allah Ta’ala knows best
Muhammad Irshad Motara
4th Rabi’ul Awwal 1438
4th December 2016
Checked and approved by:
Mufti Musayyab Sahib
4th Rabi’ul Awwal 1438
4th December 2016
