I was in doubt about getting divorce while my wife was 4 months pregnant.
Mu' meneen Brothers and Sisters,
As Salaam Aleikum wa Rahmatullahi wa Barakatuh. (May Allah's
Peace, Mercy and Blessings be upon all of you)
One of our brothers/sisters has asked this question:
Question
No. 9876 : Dear respected brother Burhan,
Thanking
you first for replying my question no.3006.
Now
again I need your help related to the above question number (Plz refer once).
At that
time I was in doubt about getting divorce while my wife was 4 months pregnant.
As per
your advice I tried my best to show her path of Islam to let her know the truth
of Al-Islam. But her response was total ignoring and I fail to make her mind as
she was having IQ problem too.
Till now
she has delivered the baby girl whom I love very much. The day she delivered
the baby she avoided coming to my home from hospital. I was shocked to see her
parents wanting her and baby to take their home as per general rule. I
explained my wife and their parents the matters in this case is not possible as
per Islam law and took away baby and wife to my home purposely without hearing
their any request and threatening talks.
Since
then my wife is always in a search of points to fight with me and my parents to
have reason to go back to her parent home. Some how I managed to keep her quiet
till completing 40 days. But in between she got one more reason to go back home
on the occasion of Hindu festival- Raksha Bandhan. When I told her this is not
possible, she called her mother & sister to my home to take her back. On
not giving permission to her mother they called local police to take my wife
and baby. They gave their responsibility note in the local police station and
took away from me.
All my
family members and relatives are very much depressed about this behavior which
happens with us and seeking your help to get out of this problem. Now I am
finally decided to get divorce from her and took my baby back. I want my baby
girl back because she born as Muslim and name given to her is Muslim (Ayesha).
Even the birth certificate, the Local Polio Dose and other Doctor’s Patient
Card is by the name of Ayesha.
Now
please please help me soon to take my baby back from those non-muslim
guardians.
Tell me
total procedures for getting divorce and taking my baby back in this case. In
which court in India (Bombay) should I apply as per Islam law, though our
marriage is as per Islam law? I took her affidavit for the conversion from
Buddhist to Muslim religion and not getting back, declaration for the marriage,
Declaration of her again from Kazi for conversion and Marriage certificate.
If court
does not permit me to take my baby back then what about the religion my baby
should have and my visitation rights. Also let me know the period for the baby
she has to be with her mother and the amount percentage of my earnings to be
paid for their upkeep.
If she
ask the alumni while getting divorced, then tell me what is the amount of my
property if have to be given to her as per Islamic rule.
I, my
family, relatives and friends are seeking your help at your earliest.
Thanking
you,
Your brother,
(There
may be some grammatical and spelling errors in the above statement. The forum
does not change anything from questions, comments and statements received from
our readers for circulation in confidentiality.)
Answer:
Custody
after divorce non-muslim
In the name of Allah, We praise Him, seek His help and ask
for His forgiveness. Whoever Allah guides none can misguide, and whoever
He allows to fall astray, none can guide them aright. We bear witness that
there is no one (no idol, no person, no
grave, no prophet, no imam, no dai,
nobody!) worthy of worship but Allah Alone, and we bear witness that
Muhammad (saws) is His slave-servant and the seal of His Messengers.
Allah Says in the Holy Quran Chapter 2 Surah Baqarah
verses 231-233:
231 When ye divorce women and they fulfil the term of their (`Iddat)
either take them back on equitable terms or set them free on equitable terms;
but do not take them back to injure them or to take undue advantage; if anyone
does that He wrongs his own soul. Do
not treat Allah's Signs as a jest but solemnly rehearse Allah's favors on you
and the fact that He sent down to you the Book and Wisdom for your instruction. And fear Allah and know that Allah is well
acquainted with all things.
232 When ye divorce women and they fulfil the term of their (`Iddat) do
not prevent them from marrying their (former) husbands if they mutually agree
on equitable terms. This instruction is
for all amongst you who believe in Allah and the Last Day. That is (the course making for) most virtue
and purity amongst you and Allah knows and ye know not.
233 The mothers shall give suck to their offspring for two whole years
if the father desires to complete the term.
But he shall bear the cost of their food and clothing on equitable
terms. No soul shall have a burden laid
on it greater than it can bear. No
mother shall be treated unfairly on account of her child nor father on account
of his child. An heir shall be
chargeable in the same way if they both decide on weaning by mutual consent and
after due consultation there is no blame on them. If ye decide on a foster-mother for your offspring there is no
blame on you provided ye pay (the mother) what ye offered on equitable
terms. But fear Allah and know that
Allah sees well what ye do.
Your
Question: Now I am finally decided to get divorce from her
Beloved brother, since you made up your mind to divorce
your wife, and before we get into the legalities of divorce, at the outset we
would like to guide you to the three terms of Divine Guidance so emphasized by
Allah and His Messenger (saws) in the process leading to and after divorce:
Your
Question: Now I am finally decided to get divorce from her and took my baby
back. I want my baby girl back because she born as Muslim and name given to her
is Muslim (Ayesha). Even the birth certificate, the Local Polio Dose and other
Doctor’s Patient Card is by the name of Ayesha.
Now
please please help me soon to take my baby back from those non-muslim
guardians.
Beloved Brother, all I can do is guide you to the Shariah
Law declared by Allah and His Messenger (saws) regarding divorce in Islam. If you reside in a non-muslim country, then
unfortunately the law of the land would be implemented; thus it would be best
to take the advice of a qualified lawyer who is well-acquainted with the law of
the land. In any case brother, you as a
believer are duty bound to and must implement the Shariah Law upon yourself,
even if there is a loop-hole in the law of the land whereby it would benefit
you! If the law of the land gives or
allows you something which is not permitted to you by Allah and His Messenger
(saws), you must fear Allah and forego that allowance; but if the law of the
land takes away something which would rightfully belong to you by Shariah Law,
you would be well within your rights to take your case to the highest legal
levels; and even if then they withhold what should be rightfully yours, then be
patient and expect your reward from Allah.
Your
Question: I want my baby girl back because she born as Muslim
Shariah Law dictates in the case of custody of children in
divorce that under normal circumstances the mother will have primary custody,
and the child will stay with the mother until the child reaches the age of
understanding or puberty, with visitation rights given the father by the
Court. Then if the father of the child
wishes to assume primary custody of his child, the case will be brought before
a Shariah Judge who will ask the child who he/she prefers to stay with: the
mother or the father? Whatever the
child decides, the Shariah Judge is duty bound to implement the decision of the
child and give visitation rights to the spouse who does not hold primary custody.
If it can be proven in a Shariah Court that the mother of
the child has left the fold of Islam, the believing father will get immediate
primary custody of the child regardless of the child’s age.
Thus brother, in your particular case, since the mother of
the child has indeed left the fold of Islam, you are well within your rights to
purse your right in Court to have primary custody of your daughter.
Your
Question: Tell me total procedures for getting divorce and taking my baby back
in this case. In which court in India (Bombay) should I apply as per Islam law,
though our marriage is as per Islam law? I took her affidavit for the
conversion from Buddhist to Muslim religion and not getting back, declaration
for the marriage, Declaration of her again from Kazi for conversion and
Marriage certificate.
As far as a Shariah divorce is concerned, all you have to
do is declare verbally to your wife that you intend to divorce her, and declare
once ‘I divorce you’ when she is not in the state of her menses. If the ‘iddah’ or waiting period of her
three menstruation periods elapse and you do not conjugate with the wife or
take her back, it would be considered a legal divorce in the Sight of Shariah
and Allah Subhanah.
Regarding which Court in Bombay you should apply for the
divorce to become legal in the land according to Indian law and for the primary
custody of the child, beloved brother, it would be best to seek proper legal
advice from a good divorce lawyer who is well acquainted with the law of the land. We obviously are not qualified to give an
opinion regarding the legalities of the current laws prevalent in India.
Your
Question: If court does not permit me to take my baby back then what about the
religion my baby should have and my visitation rights.
In the unfortunate circumstance, if the Indian Law gives
primary custody of the child to the mother, regret you would have to accept
that although the child will be always be considered a muslim in the sight of
Shariah because of her birth from a believing father, even though she will grow
up in a disbelieving environment.
Whatever little influence you might have will depend on what you are
able to salvage during your visitation rights if any, provided by the law of the land.
Your
Question: Also let me know the period for the baby she has to be with her
mother and the amount percentage of my earnings to be paid for their upkeep.
Allah Says in the Holy Quran Chapter 2 Surah
Baqarah verses 232-233:
232 When ye divorce women and they fulfil the term of their (`Iddat) do
not prevent them from marrying their (former) husbands if they mutually agree
on equitable terms. This instruction is
for all amongst you who believe in Allah and the Last Day. That is (the course making for) most virtue
and purity amongst you and Allah knows and ye know not.
233 The mothers shall give suck to their offspring for two whole years
if the father desires to complete the term.
But he shall bear the cost of their food and clothing on equitable
terms. No soul shall have a burden
laid on it greater than it can bear. No
mother shall be treated unfairly on account of her child nor father on account
of his child. An heir shall be
chargeable in the same way if they both decide on weaning by mutual consent and
after due consultation there is no blame on them. If ye decide on a foster-mother for your offspring there is no
blame on you provided ye pay (the mother) what ye offered on equitable
terms. But fear Allah and know that
Allah sees well what ye do.
Islam has prescribed a period of two years for the weaning
of the child, and has commanded that the father shall bear the full cost for
the upkeep of the child on ‘equitable terms’.
The mother has a right to demand a fair compensation for weaning the
child during this period and the father must compensate the mother on
‘equitable terms’ during this period of weaning of two years. The phrase used by Allah Subhanah is
‘equitable terms’, which basically means that the father must provide for the
same standard of living of the child as he himself is living in. The believers are commanded that neither the
mother be treated unfairly on account of her child, nor should the father be
treated unfairly on account of his child.
Thus the compensation during this period of weaning is not
calculated as a percentage of one’s earnings, but rather on the standard of
one’s living or ‘equitable terms’.
Besides, Shariah Law dictates that in the case of divorce, it is the
father who will be responsible and bear the complete financial cost of the upbringing
of the child until the child reaches the age of adulthood, regardless of who
has primary custody of the child.
Your
Question: If she ask the alumni while getting divorced, then tell me what is
the amount of my property if have to be given to her as per Islamic rule.
Shariah Law dictates that other than the compensation the
mother has a right to demand for the weaning period of the child for two years,
there is no other form of compensation or ‘alimony’ the wife would receive in
the case of divorce. But if the
husband, of his own free will, wishes to do ‘ahsaan’ and show generosity and
gives something to his divorced wife, he is well within his rights to do so.
Shariah Law dictates that after one has divorced his wife,
under no circumstances can the husband demand the wife to give back anything he
had given to her prior to the divorce; even if it were mountains of
treasures!
Allah Says in the Holy Quran Chapter 4 Surah
Nisaa verses 20-21:
20 But if ye decide to take one wife in place of (or divorce) another even
if ye had given the latter a whole treasure for dower, take not the
least bit of it back: would ye take it by slander and a manifest wrong?
21 And how could ye take it when ye have gone in unto each other and
they have taken from you a solemn covenant?
Beloved brother, because of the complication of your wife
leaving the fold of Islam and your abiding in a land which does not follow
Shariah Law, we again reiterate that it would be best to take a legal opinion
from a qualified divorce-lawyer who is acquainted with the laws of the
land.
As your brothers and well-wishers in Islam, we remind you
to remember the three elements of Divine Guidance during and after the
proceedings in this unfortunate case of divorce:
Also brother, we urge you to remember that regardless of
the law of the land, you as a believer in Allah and the Last Day are duty bound
to implement the Shariah Laws upon yourself.
Even if the unjust man-made laws of the land allow you some benefit
which does not rightfully belong to you according to Shariah Law, you are not
to take advantage of such loop-holes.
And finally brother, we implore you that just as you
married the woman of your choice in peace and love, and due to unfortunate
circumstances and realities you now wish to separate from that woman, make sure
the separation is also in peace.
Regardless of how unjustly or unfairly your wife or her family treat
you, you remain steadfast on the Righteous Path of Truth and do and say only
what is Fair, Just, and Pleasing to Allah Subhanah, The Lord of the Heavens and
the Earth and everything that exists in between.
If one trusts,
obeys, and follows the guidance
and commands of Allah and His Messenger (saws), one can be assured of never ever being misled; but if one believes, obeys and follows any other guidance, other than that of Allah and His Messenger
(saws), one can be assured of being led
astray.
Whatever written of Truth and benefit is only due to
Allah’s Assistance and Guidance, and whatever of error is of me alone. Allah Alone Knows Best and He is the Only
Source of Strength.
Your brother and well wisher in Islam,
Burhan
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