Demanding custody of child in unregistered marriage
30-12-2017 | IslamWeb
Question:
I want a fatwa regarding the divorce of my friend, who is from India. My friend works in Saudi Arabia. He was already married and has children from his first marriage (in India). Later, he got married to another woman in Saudi Arabia who is not a citizen (she is from Ethopia). He kept this fact hidden this from his first wife. He had a son from his second wife who was send to Ethopia immidiately after his birth. He is eight years old now. Later, he discovered that his second wife is of bad charater (i.e. she has relations with other men). Now he decided to divorce her in Saudi Arabia. The problem is that he did not register that second marriage; it was done in private in the presence of a judge. That judge has since left the country, meaning that he is not availabe in order to provide evidence. So please guide me in this matter. What should be done? My friend wants custody of his child, who was given to the mother, because he has never seen him since his birth. Should he agree on giving allowence for his child? Please reply as soon as possible. He is planning to retire and go back to his own country.
Answer:
All perfect praise be to Allah, the Lord of the worlds. I testify that there is none worthy of worship except Allah and that Muhammad, sallallaahu ‘alayhi wa sallam, is His slave and Messenger.
The basic principle is that if this man has divorced his wife, the custody of the child is given to the mother so long as she does not remarry and as long as she meets the conditions of the custody (i.e. there is no religious impediment that prevents her from taking custody, like being immoral or the like). If the mother is not qualified to take custody, then the custody of the child is granted to the next worthier female relative according to the order underlined by the jurists. The father may be given custody according to certain conditions underlined by scholars. They are explained in fatwas 84618 and 86891.
These two fatwas also mention the different scholarly opinions regarding the age of custody. You should also know that the scholars held different views regarding the custody of the child when the parents live in two different countries.
The circumstances in the situation that you inquire about make issuing a fatwa in this regard of no real benefit; therefore, we advise that man to solve his problem with the mother of his child in a friendly manner. As for the divorce, it is in his hands. If he issues divorce, it takes effect. If the wife claims that the divorce did not take place and demanded her rights as a wife during that period, then he has to prove the divorce; otherwise, her legal rights as his wife during this period are established and binding on him. This emphasizes the need to refer the case to the Muslim judge as well as the fact that issuing a fatwa in this regard is futile.
Allah knows best.