Dought & clear, - Should he stay in the disbelievers’ land in order to take care of his son from his apostate ex-wife, or should he go back to his Muslim country?

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Previously I was married to a French woman who had become Muslim, and she gave me a son approximately 3 years ago, but one year ago this woman apostatised from Islam, and I repented to Allah and became religiously committed, and I started to look for a righteous wife who wears the niqab in Morocco, not France (with the intention of leaving the land of the disbelievers), where I currently live and my son lives with his mother. Then I found a girl in Morocco and I proposed to her (with the approval of my parents) on the basis that we would live in Morocco, and this girl agreed, but recently my mother pointed out to me that I should not leave my son on his own in France to be brought up by his mushrik mother and her Christian family, and that I should stay near him in France, to bring him up in an Islamic manner, and she does not agree with me going to Morocco.
My question is: what should I do? Should I be patient and stay near my son here in France, even though I no longer want to stay in the disbelievers’ land? If I do that, what about getting married? (Niqab is banned here and I cannot marry a woman who does not wear niqab). What about the girl I proposed to in Morocco? Can I suggest that she should come to France? What about her niqab? Or should I move to the Muslim land and make frequent visits to France in order to check on my son and how he is being brought up? (For example, I could open an import-export business which will allow me to visit France often) Or is there another solution by means of which I may please Allah?
Praise be to Allah
Firstly:
It is not permissible for you to leave your son to be easy prey for the disbelievers. You have to do your utmost to take him away from his mother and her country, so that he can live with you in your country. This is your right according to sharee‘ah, and he should follow you in your religion and be in your custody; that apostate woman has no right to him. If you can give them money to let the boy be with you, then do so; if you can refer the matter to their courts so that he can be in your custody, then do so. In all of these matters, you should consult Islamic centres whose staff you trust in that country, and consult trustworthy lawyers. If you can find a suitable way to take him and bring him to your country, then do so.
If your attempts to keep your son with you now do not succeed, but the law will allow you to have custody of him within a short period of time, then there is nothing wrong with staying there for the duration, so that you can be near him and in constant contact with him, until you are able to have custody of him. At the very least, you can frequently visit that country in order to see him and take care of him as much as you can, within time constraints. Perhaps your frequent visits will be a cause of his mother coming back to Islam and being saved from eternity in the Fire, and it may be a cause of your son bonding with you and loving Islam. At the same time you should do whatever you can to make sure that he is in a clean environment, whether in the place where he is living or in school. We know how difficult that is, but whoever fears Allah, may He be exalted, is sincere in his intention and does his utmost, there is the hope that the difficulties will be reduced for him and his good wishes will be fulfilled.
Secondly:
If your staying in France will increase the likelihood of your son being with you and keeping his religion, and that his apostate mother will not make him into a Christian or turn him away from your religion, then stay close to him until you are able to take custody of him, as mentioned above. If you think that there is no benefit in your staying there, and that you will never be able to take custody of him within a short period of time, then what we think is that you should move to your country Morocco, and start a new life there, but that is on condition that you can frequently visit the place where your son lives, as we mentioned above. Do not cut off your ties with him and keep in touch with him as much as you can.
And Allah knows best.

PUBLISHER Najimudeen M

Dought & clear, - She died during the ‘iddah following divorce; can her husband wash her?

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A woman was divorced by her husband, and during the ‘iddah she died. Is it permissible for her husband to wash her when she was observing ‘iddah?
Praise be to Allah
Firstly:
In the answer to question no. 14016, we stated that it is permissible for one of the spouses to wash the other (ghusl in preparation for burial).
Secondly:
If the wife dies during the ‘iddah following divorce (talaaq), if it was a revocable divorce, it is permissible for the husband to wash her; by the same token, if the husband dies after issuing a revocable divorce, his wife may wash him, because the woman who is revocably divorced still comes under the rulings on wives, so she has the same rights and duties as other wives.
Ibn Qudaamah (may Allah have mercy on him) said: If he divorces his wife, then one of them dies during the ‘iddah, if the divorce (talaaq) was revocable, then they come under the same rulings as spouses before divorce, because she is still regarded as a wife and should observe ‘iddah following the husband’s death; and she inherits from him and he inherits from her, and it is permissible for him to have intercourse with her.
End quote fromal-Mughni, 2/201
But if the divorce was in return for compensation (as in the case of khula‘) or there had been three divorces (talaaqs), it is not permissible for one of them to wash the other, because the marital relationship has come to an end.
Ibn Qudaamah (may Allah have mercy on him) said: If it was a final, irrevocable divorce, It is not permissible, because it is haraam to touch or look (at one another) when still alive, and that applies more emphatically so after death.
End quote fromal-Mughni, 2/201
Ibn ‘Abd al-Barr (may Allah have mercy on him) said: They (the scholars) are unanimously agreed that an irrevocably divorced woman cannot wash her husband if he dies during her ‘iddah.
End quote fromal-Istidhkaar, 3/11.
An-Nawawi (may Allah have mercy on him) said: They are unanimously agreed that the case of complete or irrevocable divorce, the surviving spouse cannot wash the spouse who has died.
End quote fromSharh al-Muhadhdhab, 5/116
And Allah knows best.

PUBLISHER Najimudeen M

Dought & clear, - She wants to become Muslim but she is in nifaas; how should she work out her ‘iddah?

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A non-muslim woman -who is already married to a non-muslim man-, wants to convert to Islam. She is in the state of Nifaas. If she converts to Islam while she is in the state of Nifaas and her husband refuses to do so, will there be any Iddah for her? If yes, than what will it be?
Praise be to Allah
Firstly:
What this lady must do is hasten to enter Islam, the true religion and the religion of sound human nature, which Allah, may He be glorified, has chosen for His slaves; whoever follows any other religion, it will never be accepted from him and in the hereafter he will be one of the losers. Praise be to Allah Who has opened her heart to Islam, for this is the greatest of all blessings. We ask Allah, may He be exalted, to make her steadfast and protect her from confusion.
Secondly:
With regard to her relationship with her non-Muslim husband, as soon as she becomes Muslim, she should refuse to be intimate with him; in fact she should live separately from him and observe ‘iddah.
The majority of scholars are of the view that she should observe ‘iddah, like a woman who has been divorced (talaaq). If she is pregnant, she should observe ‘iddah until she gives birth; if she is not pregnant, then her ‘iddah is three menstrual cycles for those who menstruate, and three months for those who have passed menopause.
Al-Qarraafi (may Allah have mercy on him) said:
There is a difference of scholarly opinion concerning the ‘iddah. Maalik and Ibn al-Qaasim said that if she becomes Muslim and he (her husband) does not, then (her ‘iddah) is three menstrual cycles.
Adh-Dhakheerah, 4/330
Some of the scholars are of the view that she should observe ‘iddah for one menstrual cycle, because her separation is that of annulment of the marriage, not separation by divorce (talaaq).
But the view of the majority is more on the safe side.
See:Ahkaam Ahl adh-Dhimmahby Ibn al-Qayyim, 1/317 ff;al-Mawsoo‘ah al-Fiqhiyyah, 29/335;Islam Ahad az-Zawjayn, 159 ff.
See also the answer to question no. 12667
What appears to be the case is that this woman is one of those who menstruate, because she has only recently been in the state of nifaas. So her ‘iddah is three complete menstrual cycles, starting from the time when she enters Islam. It should be noted that the time of her nifaas is not counted as part of the ‘iddah at all. Rather nifaas has nothing to do with the ‘iddah; she should wait until her nifaas ends, then she gets her period and becomes pure, then she gets (another) period and becomes pure, then she gets (a third) period and becomes pure. Then she will have had three menstrual cycles and her ‘iddah will be over, whether the time between periods is long or short.
Al-Hajjaawi (may Allah have mercy on him) said inZaad al-Mustaqni‘:
This is like menses in terms of what is permissible, prohibited, obligatory and waived, apart from observing ‘iddah.
Shaykh Ibn ‘Uthaymeen (may Allah have mercy on him) said:
i.e., the nifaas is not included in the ‘iddah.
Therefore menstruation is counted as part of the ‘iddah, whereas nifaas is not counted as part of the ‘iddah.
For example, if a man divorces his wife, then she should observe ‘iddah for the duration of three menstrual cycles, each of which is counted as part of the ‘iddah.
Nifaas is not counted as part of it, because if he divorced her before she gave birth, the ‘iddah comes to an end when she gives birth. But if he divorced after that, she must wait for three menstrual cycles, and the nifaas is not included as part of the ‘iddah at all.
End quote fromash-Sharh al-Mumti‘, 1/516
However, the menstrual period during which the separation occurred is not counted as part of the ‘iddah either.
See:ash-Sharh al-Mumti‘, 9/279
Thirdly:
She has to observe ‘iddah. If her husband becomes Muslim during this period, then they remain married, with no need for a new marriage contract.
If her husband does not become Muslim during this period, and the ‘iddah comes to an end, there is a difference of opinion among the fuqaha’ concerning that:
Some of them said that their marriage becomes annulled when the ‘iddah ends, and the woman is then completely divorced from her husband.
However, the correct view is that if they agree to go back to one another on the basis of the original marriage contract, and the woman has not married someone else, then that is permissible and there is no need for a new marriage contract.
Ibn al-Qayyim (may Allah have mercy on him) said:
What is indicated by the rulings of the Prophet (blessings and peace of Allah be upon him) is that the marriage is suspended; if he becomes Muslim before the end of her ‘iddah, then she is still his wife. But if her ‘iddah comes to an end, she may then marry anyone she wishes, or if she wants, she can wait and if he does become Muslim, then she is still his wife, with no need for a new marriage contract.
End quote fromZaad al-Ma‘aad, 5/137
This is the view favoured by Shaykh al-Islam Ibn Taymiyah, and is the view regarded as most correct by Shaykh Ibn ‘Uthaymeen (may Allah have mercy on them both). They quoted as evidence the report narrated by Abu Dawood from Ibn ‘Abbaas (may Allah be pleased with him), according to which the Messenger of Allah (blessings and peace of Allah be upon him) sent his daughter Zaynab back to her husband Abu’l-‘Abbaas on the basis of her original marriage contract.
Narrated by at-Tirmidhi, 1143; Abu Dawood, 2240; Ibn Maajah, 2019. Classed as saheeh by al-Albaani inSaheeh Ibn Maajah.
He became Muslim two years after the verses of Soorat al-Mumtahanah were revealed, in which it states that Muslim women are forbidden in marriage to mushrik men. What appears to be the case is that her ‘iddah ended during that period, but the Prophet (blessings and peace of Allah be upon him) still returned her to him on the basis of the original marriage contract.
And Allah knows best.

PUBLISHER Najimudeen M