Fatwa ID: 01740
Answered by Mufti Mohammed Tosir Miah
Opinion (fatwa) of muftian-e-sharia is required in this problem which includes a widow. She also has a daughter. She is residing in house of her parents after she had spent her specific period which was due to be spent in her husband’s house after his death.
Points of concern are as under.
1) The deceased husband was a govt employee & after his death govt had allocated some amount approximately RS. 300000 (3 lac) for his widow. Now
a) What is the legitimate position of this amount?
b) Is this amount legacy of deceased husband?
c) Who are the legtimate owners of this amount?
2) In laws say that if widow resides with them she can take the legacy otherwise if she resides with her parents nothing will be giving to her from legacy. Is this right?
3) In laws are demanding that 4years old daughter should be given to them.
Can they own the daughter legally while the widow does not intend to handover her daughter to them?
4) In case the woman marries an other person is she bound to return the daughter to her previous in laws? Also intimate that in this case who is the legal contender for the daughter by the law of sharia?
5) Dower which was fixed at the time of marriage will be paid by whom when the husband had died?
The money from the government for the husband’s death will be permissible to take. This money however, will be distributed amongst all the heirs including the wife and daughter of the deceased. This can be derived from the order of the Prophet of Allah that the wife of Ashyam Dababi will inherit from his blood money (diyah). (Durre Mandhuud p.95 v.5)
The in laws cannot make such a condition.
Answer 3 & 4
At the time of The Prophet of Allah 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 Allah 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 or she marries someone who is not related to the husband and there is a fear of the child being affected. (Raddul Muhtar p.253 v.5)
Thereafter, the custody will be given to the following people:
Maternal grandmother (Sunan Baihaqi, No: 15766)
Maternal half sisters
Paternal half sisters
Paternal aunts (Sahih Bukhari p.371 v.1 & Sunan Abu Dawud p.331 v.1)
Thereafter, it will be given to the male relatives of the child:
Maternal brother (Raddul-Muhtar p.252-265 v.5)
The dowry is a debt on the husband and it will be taken out from his estate after paying of his funeral expenses. After the execution of his debt the remainder will be distributed amongst the heirs.
Ibrahim Nakhai said: “It shall be commenced with the funeral and burial expenses then pay the debts, and next the legacies (bequests).” (Sahih Bukhari)
Only Allah Knows Best
Mohammed Tosir Miah
Darul Ifta Birmingham