Seeking custody of a child from an adulterous mother

Fatwa ID: 01492

Answered by Mufti Mohammed Tosir Miah

Question:

In August 2009, (first day of Ramadhan my wife and I reverted to Islam) meaning, we both were born in a muslim family, but knew nothing about our religion except the basics which we never followed. Never read the Quran and saw what is inside it.  My wife and I, we come from a background of partying, drugs,shamelesness and disobedience to ALLAH SWT..

ALLAH THE MOST KIND, guided us to the straight path. We started studying the religion, reading the Quran and watching lectures online. Thanks to Dr. Zair Naik and his videos, we became very passionate about learning what the purpose of life is. Eventually, we became so invlolved and left our bad habits completely and wanted to everything single that would please our Creator and abstain from every single thing that would displease our LORD to the best of our abilities. My wife and I got so involved in dawah, very much involved in our local Masjid and putting every thing we learn into practise by the Mercy of ALLAH SWT.. We would literally ''hear and obey'' My wife chose to wear hijab along with the niqab (face veil). She had only good practising friends, we wanted to stay away from people that would call us back to the same lifestyle.  Life was great, even though we were struggling financially but ALHAMDULLILAH we were getting by somehow. 

This went on until 4months ago, (my wife's 9th month of pregnancy). From then on I started noitcing changes in my wife, she was neglecting the Quran, running away from listening to lectures (online) engaging in things which are useless. I thought because of her last month of pregnancy she is behaving this way. Then her parents came over to stay with us for a month at the time of delivery. Her parents are ''less practising muslims'' and they didnt really appreciate our transformation and becoming more close to the deen. They were actually discouraging us. They would think I am too extreme if I go to the Masjid and pray there 5 times, even though I live a minute away from the Masjid. Discouraging us because we didnt watch movies or have a TV in our house and ofcourse because their daughter would cover herself head to too etc, etc.

I noticed many changes in wife when her parents were staying with us, but I thought that my wife is mature enough and her iman is strong enough that she wont be affected by them or their discouragement. One day she blew up,  cursing me out and saying i dont like this lifestyle, i want to have fun, go out etc ect.. She totally trashed me infront of her parents, I didn't react, I thought maybe she is right, we can have some halal fun and go out a little more. Soon after delivery, they decided to take her with them to their house in Virginia for a month. She ended up staying there for a month and half.

In the meantime, she completely changed!! She took off her Niqab, her abaya, started wearing all kinds of tight clothes. Neglecting her salaah, engaging in haraam activities and thinking there is nothing wrong with it. Blatantly disobeying ALLAH subḥānahu wa ta'āla (glorified and exalted be He) and not even realsing what she is doing is wrong. She even went to the extent of cheating on me, when she was staying in Virginia. Because of our big fight before she went to Virginia, we weren't really talking too much over the phone.  So that gave her a reason to fight more with me.  She didn't want to come back home with me to Chicago, she wanted a divorce. But I requested her parents and asked her to come with me. (I was unaware of her cheating on me at that time)

Because she didnt really have a strong reason to not come and ask for a divorce, she ended up coming. Like I said she has compltely changed. I used to hear that people's heart change, I witnessed it with my own eyes. SUBHANALLAH, i have seen her completely change when we accepted Islam, and now the total opposite. That is so true, Whomsoever ALLAH AZZAWAJAL guides there is none to misguide and whomsoever ALLAH SWT allows to go astray (because they themselves dont want to be guided) none can guide them.

The only thing that I see of Islam in her is her irregualar salaah and her barely covering fashionable ''so called hijab'' . As I said she is cheating on me. She would delete all of call records, delete history on the computer and spend hours in the bathroom. I decided to put voice recorders all over the house. Thats when I came to know, that she is cheating on me, she doesn't like the islamic lifestyle and she wants money and lavish lifestyle. Love for the dunya has crept into her heart so much that she is blinded, she cant seem to see right and wrong. Quranic ayaths or reminders has no whatsoever effect on her. Matter of fact she is fleeing away from it as a devil from the azaan.

I have heard in her conversations that she hates me, doen't want to live with me, wants a divorce and take my son away from me.

Here is my question, I know islamically if a couple get divorced the wife gets to keep the child, until the child is old enough to decide. But if she remarries, then Islamically the husband gets to keep the child.

Can I fight in the court to keep the child with me and ask for full custody, because I fear that he will not have a proper upbringing, I want him to be a slave of ALLAH, i want him to be a righteous Muslim INSHALLAH.. I do not want her mother or her parents around my son. So  would I be going against the Shariah, or displeasing ALLAH subḥānahu wa ta'āla (glorified and exalted be He) if i fight in court trying to get full custody of my child.  I have enough evidences to prove that she is a bad mother, she is irresponsible with the baby, she has anger and temper problems and that she is suicidal, unfaithful wife and more.. Is it permissible for me to do this? Please advice me.

My second question is, how do I divorce her islamically, since she cheated on me, is there a waiting period (iddah) for her to stay in my house. Or can I divorce her at once without waiting?

Answer:

Bismillah

In the name of Allah, the most Beneficent, the most Merciful.

It is very unfortunate and sad to hear your story and I pray to Allah that he will make things easy for you. When Allah subḥānahu wa ta'āla (glorified and exalted be He)  inflicts any hardships or calamity upon anyone, the purpose for this is to either test his true servants as Allah subḥānahu wa ta'āla (glorified and exalted be He) in the Holy Quran has said,

“Be sure we shall test you with something of fear, and hunger and some loss of wealth and lives and fruits and glad tidings to those that bear patience”.  (Suarh Baqarah v.156)

Sometimes it so happens for it to be a lesson for the people coming after not to commit that deed again as Allah subḥānahu wa ta'āla (glorified and exalted be He) states in the Holy Quran:

“And indeed before you we sent (Messengers) too many nations so we seized them with suffering and adversity so that they may fall into humility.”  (Surah Anaam v.42)

Or these tests can be a means of purification for the pious people.  The Prophet of Allah Sallallahu Alahi Wasalam has said when a persons sins increases and nothing remains to remove it then Allah subḥānahu wa ta'āla (glorified and exalted be He) inflicts this person with such sorrow, which expiates his sins.  (Tafsir Ibn Kathir)

At the time of The Prophet of Allah ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) a woman came to him and said; “ O’ Prophet of Allah, for this son of mine my womb was a plate, my lap was a resting place and my breasts a means for him to quench his thirst, and now his father wants to take him away from me. So the Prophet of Allahṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) said “You have more right over him until you get married.” (Sunan Abu Dawud)

If the separation takes place between couples that have young children, the ruling is as follows;

The mother has a right of custody for a boy until the child is capable of taking physical care of himself, for instance the child should be able to feed himself and go to the toilet by himself etc…This is approximately at seven years old, and the fatwa has been issued on this age. In case of a girl, the mother has custody for her until she has reached the age of puberty, which has been declared at nine years old. (Raddul-Muhtar p.252-265 v.5, Ahsanul Fatwa p458-459 v.5)

It should also be borne in mind that the boy remains in his father’s custody until puberty, at which point he has a choice to whom he wants to live with or perhaps he may wish to live by himself. The girl on the other hand will remain with the father until she gets married. (Fatawa Hindiyyah p542 v.1)

However, the right of custody will be taken away from the mother if she leaves Islam or indulges in sins such as adultery and there is a fear of the child being affected. (Raddul Muhtar p.253 v.5)

Therefore, the conclusion we can come to is that it is totally permissible for you to challenge the right of custody for your child on the basis of the mother being unfaithful and adulterous which can affect the child’s upbringing.
From the following hadith we can derive that it may be preferable for the husband to divorce such a wife.

Saaiduna Ibn Abbas raḍyAllāhu 'anhu (may Allāh be pleased with him) narrates that a man came to the Prophet of Allah ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) and said that his wife “does not move anyone’s hand from her” (indicating to that whenever someone wants to commit adultery with her she commits it). The Prophet of Allah ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) replied, “Divorce her.” Then the man said, “I love her”, upon which the Prophet of Allah ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) said, “Then keep her”. (Mishkatul Masabeeh p.287 v.2)

The scholars of hadith have said that it is preferable to divorce an adulterous woman. However, if you love her and she has repented from her actions and is willing to change then you can keep her. (Mazahirul Haq p.179 v.4)

It will be best that you give her one revocable divorce (talaq rajee) thereafter the passing of three menstruation cycles the nikah will come to an end. (Hidayah p.354 & p.422 v.2)

Only Allah Knows Best

Mohammed Tosir Miah

Darul Ifta Birmingham

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