As Salaam Alai Kum A girl was married at age of 17+ without her
consent; during the relationship of marriage she had three children;
the woman quite often brought to the attention of her family members
the strains in the first marriage, however, they asked her to
continue. They could not get along and finally divorced each other,
mutual agreement.After completing the Iddah, Shariah formalities, etc.
she came in contact with a man, liked him and both got married
(Nikaah) as per Shariah guidelines. The three children from her first
husband stay with the mother & second husband (the couple). The couple
is happily married for last 10-12 years; the children also are happy &
their basic needs are taken care-of; there is no dispute in
relationship, this relationship is full of love, genuine feelings;
care, affection, understanding, etc. The elder daughter (first child)
recently got married (most of the expenses of the marriagewere borne
by biological father). Now the other two children have grown-up, the
biological father demands that the kids stay with him, citing they
will have brighter future and shall not be deprived of the luxuries of
life. To give the children their 'HAQ"; the condition imposed by
thewoman's (mother) family members and first husband is that she
should take KHULA from the second husband. The mother cannot stay
without the children; thiscouple (woman + second husband) cannot live
without each other; there is no valid reasons for separation, both are
happy with each other. The people involved are demanding / forcing the
woman to take KHULA from the second husbandand go back to the first
husband. Otherwise she and the children will be deprived from the
'HAQ' they should get by meansinheritance. "Is it fair or permissible
to force the Woman to take KHULA or force the Second Husband to give
KHULA without any valid reasons or justifications? "Is it fair or
permissible to withhold one's 'HAQ' and deprived them with what they
entitled for"?
Answer
All perfect praise be to Allaah, The Lord of the Worlds. I testify
that there is none worthy of worship except Allaah, and that Muhammad
, is His Slave and Messenger.
It is not permissible for anyone to force two spouses to separate
through divorce or Khul' without a Sharee'ah-based reason. It would
not even be valid unless they consented to it. Rather, this is like
what the sorcerers and devils do when they work to separate loved
ones. This causes Fitnah (tribulation) in the earth and great
corruption. Allaah The Exalted Said about sorcerers (what means): {
They then learn from them that by which they cause separation between
a man and his wife. } [Quran 2:102]. It is reported in Saheeh Muslim
that one of the troops of Ibless (the Devil) says to him: " I did not
leave him alone until I caused separation between him and his wife. "
So he (Iblees) brings him close to him and says: " How good youare! "
Those people should be reminded to fear Allaah for themselvesand to
stop this evil act.
Likewise, it is not the right of the father to restrict his children
from their right of inheritance due to them staying in the custody of
their mother. If he wrote this in his will, then that (partof the)
will would be invalid and it is not permissible to fulfill it. Allaah
The Exalted divided the inheritance according to His Book and He gave
every rightful person his right, and then followed that by saying
(what means): { These are the limits set by Allaah, and whoever obeys
Allaah and His Messenger will be admitted by Him to gardens [in
Paradise] under which rivers flow, abiding eternally therein;and that
is the great attainment. And whoeverdisobeys Allaah and His Messenger
and transgresses His limits – He will put him into the Fire to abide
eternally therein, and he will have a humiliating punishment. } [Quran
4:13-14]. For more benefit, please refer to Fatwa 120933 .
As for the custody of the children, it is the right of the mother.
However, if she marries, then custodyis transferred thereafter to the
person entitled to it after her according to the order stated by
juristsas clarified in Fatwa 84618 . Some of the scholars stipulated
that the right of custody for the father is conditioned upon him
having a righteous female to manage that custody. This is reported by
the Maaliki jurists.
If there is any dispute in such issues, it is only appropriate to
refer to those specialized in looking into Muslim affairs (like
Islamic courtsand Islamic centers).
Allaah Knows best.
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