Fatwa ID: 05050

Answered by: Mufti Mohammed Tosir Miah

Question

If a woman remarries her new husband after she was given triple talaq, can she seek a divorce just for the sake of her child custody?
 
Is it permissible for a woman to ask for a divorce if she feels that her previous husband is much better than her new husband and she feels that she can get along with her new husband?
 

In the name of Allah, the Most Gracious, the Most Merciful

Answer

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 the case of a girl, the mother has custody of 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 p.458-459 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 as 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 p.542 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. Similarly, if the mother marries someone who is not related to the child if there is a fear of the child being affected. (Raddul Muhtar p.253 v.5)

Regarding the first of the question, the mother by marrying a non-relative of the child has relinquished her rights of custody of the child and she would not be allowed to ask for a divorce.

The Prophet of Allah Sallallahu Alahi Wasalam  said, “If a woman asks her husband for a divorce, for no reason, then the smell of paradise is forbidden for her” (Sunan Tirmizi p.226 v.1)

Similarly, for a wife to ask to divorce her husband because she feels the previous husband is better than the current husband, not only is it impermissible but also a total act of disrespect and ungratefulness to her husband.

A wife’s obedience to her husband is one of the things that may lead her to Paradise, as the Prophet of Allah Sallallahu Alahi Wasalam said: “If a woman prays her five daily prayers, fasts her month (of Ramadan), obeys her husband and guards her chastity, then it will be said to her: ‘Enter Paradise by whichever of its gates you wish.” (Musnad Ahmad & Tabraani) 

Saaidah Umm Salamah Radiallahu Anha narrates that Prophet of Allah Sallallahu Alahi Wasalam said, “Any woman who dies, and her husband is pleased with her, will enter Paradise.” (Sunan Ibn Majah p.133 v.1)

Your wife will be considered sinful for her demand for a divorce, however, what should a Muslim man do in such a situation where his wife has made it clear that she does not want to stay with him anymore.

Divorce is the last thing a person should resort to and only after every other avenue has been exhausted should a person contemplate divorce. Before that stage, the elders should be consulted as to who should arbitrate between the couple and try to reconcile the differences between them. Allah states in the Quran, “If you fear a breach of marriage between a man and his wife, appoint one arbiter from his family and another from hers; if they wish to reconcile, Allah will create a way of reconciliation between them. Allah is knowledgeable, aware.” (Surah Nisa v.35)

If despite this the couple cannot live in harmony, then Islam does permit that divorce is issued.

Only Allah Knows Best

Written by Mufti Mohammed Tosir Miah

Darul Ifta Birmingham