Artikel 122: Das Sorgerecht für die Kleinkinder ist eine Verpflichtung für die Frau und ihr Recht, unabhängig davon, ob sie Muslimin oder Nichtmuslimin ist, so lange das Kleinkind dieser Obhut bedarf. Bedarf es ihrer nicht mehr, gilt (im Falle einer Trennung) Folgendes: Sind die Betreuerin des Kindes und der Vormund (Waliy)Muslime, kann das Kind, sei es weiblich oder männlich, wählen, bei wem es bleiben will. Demjenigen, den es gewählt hat, wird das Kind zugesprochen, sei es der Mann oder die Frau. Sollte einer der beiden Nichtmuslim sein, kann das Kind nicht zwischen ihnen wählen, sondern wird dem muslimischen Teil zugesprochen.
Article 122: Custody of the child is a right and duty upon the mother, irrespective of whether she is a Muslim or not as long as the child needs this care. If the child no longer needs the care, then the situation is examined. If both of the parents are Muslim then the child, whether boy or girl, chooses whomever they would like to live with, and they will join whomever they choose, irrespective of whether that was the man or woman. If one of them is non-Muslim, then there is no choice between them; and they rather will join the Muslim parent.
The evidence for this article is what was narrated by Abdullah Bin Amr b. Al-‘As:
«أَنَّ امْرَأَةً قَالَتْ: يَا رَسُولَ اللهِ، إِنَّ ابْنِي هَذَا كَانَ بَطْنِي لَهُ وِعَاءً، وَثَدْيِي لَهُ سِقَاءً، وَحِجْرِي لَهُ حِوَاءً، وَإِنَّ أَبَاهُ طَلَّقَنِي وَأَرَادَ أَنْ يَـنْـتَزِعَهُ مِنِّي، فَقَالَ لَهَا رَسُولُ اللَّهِ : أَنْتِ أَحَقُّ بِهِ مَا لَمْ تَـنْكِحِي»
“A woman said “O Messenger of Allah, this is my son whom my stomach carried, my breast is a water-skin for him, and my lap is a guard for him. His father has divorced me and wants to take him away from me”. So he said “You have more right to him as long as you do not remarry”” (reported by Abu Dawud and Al-Hakim who authenticated it, and Al-Dhahabi confirmed it). This indicates that the mother has more right to the child while they still require nursing, since the Messenger ruled for her to continue nursing him as long as she was not married, and did not give the child the choice, which indicates that he still required nursing. It is narrated by Ibn Abi Shaybah from Umar (ra) with an authentic chain whose reporters are all trustworthy that he divorced Umm ‘Asim, then came to her while ‘Asim was in her lap, and wanted to take him from her. The two of them argued until the young boy began crying, and so they went to Abu Bakr as-Siddiq (ra) who said “Her touch, lap and smell are better for him than you, until he grows up and then can choose for himself”. Accordingly the young child who still needs nursing remains the mother’s right and it is obligatory upon her and similarly upon her mother and grandmother, and upon every women from those who have the right of custody.
When the child becomes older, such that they are above the age of nursing which is by confirming whether he can do without it or not – which differs between children depending upon their circumstances – so a boy may not require it and he was five years old, and another when they were younger or older, and should be according to an expert’s opinion. Based upon that, if they were not reliant upon nursing they are given the choice between the parents; Abu Hurayrah reported
«أَنَّ النَّبِيَّ خَـيَّرَ غُلامًا بَـيْنَ أَبِيهِ وَأُمِّهِ»
“The Prophet gave a boy the choice between his mother and father” (reported by Ahmad and Al-Tirmidhi who authenticated it). And Abu Dawud reported a narration from Abu Hurayrah that Ibn Hibban authenticated:
«... أَنِّي سَمِعْتُ امْرَأَةً جَاءَتْ إِلَى رَسُولِ اللَّهِ وَأَنَا قَاعِدٌ عِنْدَهُ فَقَالَتْ: يَا رَسُولَ اللَّهِ، إِنَّ زَوْجِي يُرِيدُ أَنْ يَذْهَبَ بِابْنِي وَقَدْ سَقَانِي مِنْ بِئْرِ أَبِي عِنَبَةَ وَقَدْ نَـفَعَنِي، فَقَالَ رَسُولُ اللَّهِ : ... هَذَا أَبُوكَ وَهَذِهِ أُمُّكَ فَخُذْ بِيَدِ أَيـِّهِمَا شِئْتَ، فَأَخَذَ بِيَدِ أُمِّهِ فَانْطَلَقَتْ بِهِ»
“While I was sitting with the Prophet a woman came and said: O Messenger of Allah, my husband wants to take my son, and he brings me water from the well of Abu ‘Inaba, and helps me, and so the Prophet said…This is your father and this is your mother, so take the hand of whichever of the two you wish. So he took the hand of his mother and so she left with him.”
These evidences indicate that once the child, whether boy or girl, reaches the age that they no longer require suckling and nursing, they are given the choice between their mother and father, irrespective of whether they were three years old or more as long as they no longer required nursing. If they still required nursing then the ruling is given in favour of the mother and the child is not given any choice.
However, if the women, such as the mother, was a disbeliever and requested to nurse her child, then if they were lower than the age of suckling or requiring nursing then the child is ruled in her favour in the same way as the Muslim woman, with no difference between them due to the generality of the narration
«أَنْتِ أَحَقُّ بِهِ مَا لَمْ تَـنْكِحِي»
“You have more right to him as long as you do not remarry”. As for when the child is above the age of nursing, such that they are at the age or above the age they no longer need to be suckled, and no longer require nursing, then the child is not given the choice but rather is given to the Muslim parent. If the wife was the Muslim then the child would be given to her and if the husband was the Muslim then the child would be given to him, due to His (swt) words
((وَلَنْ يَجْعَلَ اللَّهُ لِلْكَافِرِينَ عَلَى الْمُؤْمِنِينَ سَبِيلًا}
“And never will Allah give the disbelievers over the believers a way [to overcome them].” (TMQ 4:141), and custody gives the custodian a way over the Muslim. Also due to his words
«الإِسْلاَمُ يَعْلُو وَلاَ يُعْلَى»
“Islam is above and nothing is made above it”, reported by Al-Daraqutni from ‘Aith Al-Mazni with a Hasan chain, and the custodian is above the child. Keeping the child under the custody of the disbeliever who will teach them disbelief is not allowed, and for that reason the child is taken from them.
As for what was narrated by Abu Dawud from ‘Abd alHamid b. Ja‘far from his father from his grandfather Rafi‘ b. Sinan that
«أَنَّهُ أَسْلَمَ، وَأَبَتِ امْرَأَتُهُ أَنْ تُسْلِمَ، فَأَتَتِ النَّبِيَّ فَقَالَتِ: ابْـنَتِي، وَهِيَ فَطِيمٌ أَوْ شَبَهُهُ، وَقَالَ رَافِعٌ: ابْـنَتِي، قَالَ لَهُ النَّبِيُّ : اقْعُدْ نَاحِيَةً، وَقَالَ لَهَا: اقْعُدِي نَاحِيَةً، قَالَ: وَأَقْعَدَ الصَّبِيَّةَ بَـيْـنَهُمَا، ثُمَّ قَالَ: ادْعُوَاهَا، فَمَالَتِ الصَّبِيَّةُ إِلَى أُمِّهَا، فَقَالَ النَّبِيُّ : اللَّهُمَّ اهْدِهَا، فَمَالَتِ الصَّبِيَّةُ إِلَى أَبِيهَا فَأَخَذَهَا»
“he embraced Islam, and his wife refused to do likewise and so she went to the Prophet and said “She is my daughter. She has finished breastfeeding or is about to”. Rafi’ said “She is my daughter”. The Prophet said to him sit on one side, and told his wife to sit on the other. He then said “Call her”, and the girl inclined to her mother. The Prophet then said “O Allah, guide her”, and then she inclined to her father, and so he took her”. This narration is authenticated by Al-Hakim and Al-Dhahabi agreed with him, and Al-Daraqutni mentioned that the girl’s name was Umayra. Ahmed and Al-Nasa’i both narrated this narration with a different chain, Al-Nasa’i narrated from ‘Abd Al-Hamid b. Ja’far Al-Ansari from his grandfather
«أَنَّهُ أَسْلَمَ، وَأَبَتِ امْرَأَتُهُ أَنْ تُسْلِمَ، فَجَاءَ ابْنٌ لَهُمَا صَغِيرٌ لَمْ يَبْلُغِ الْحُلُمَ، فَأَجْلَسَ النَّبِيُّ الأَبَ هَا هُنَا وَالأُمَّ هَا هُنَا، ثُمَّ خَـيَّرَهُ فَقَالَ: اللَّهُمَّ اهْدِهِ، فَذَهَبَ إِلَى أَبِيهِ»
“that his grandfather embraced Islam, while his wife refused. Thier young son who has not reached puberty yet came. The Prophet sat the father in one place and the mother at another, and then gave the young boy the choice and said “O Allah guide him”, and so he went to his father”. Ibn Jawzi mentions that between the two chains of narrations the chain that mentions that it was a boy is the more correct.
The Messenger was not content with what the child had chosen, rather he prayed for him and so he chose his Muslim father, or in other words, the child was given to the Muslim of the two parents.