PROTOCOLS
Abstract
Separation/divorce of spouses is prevalent in Nigeria today. In a nationwide study of 6,710 adolescents aged 12 – 17 conducted by Amato et.al (1994), they found out that across socio-economic levels, teenagers living with only their mothers were more likely than those living with both parents prone to truancy, alcoholism, drug abuse and addiction; and to have discipline problems in school or to get into problems with the police. Where one parent is absent, the responsibilities that are supposed to be shared by both parents is upon the only one present and this makes life more demanding and challenging; this might eventually lead to maladjustment later in life for the children.
These findings appear alarming and it is in line with this, that the topic Child Custody and Upbringing in the face of separation of spouses becomes apt; it is our hope that at the end of today’s seminar, we would be able to determine who takes custody of the child and his/her upbringing in the face of separation of spouses if there is any need for such separation!.
Four key concepts are involved in the topic:
Child: a young human below the age of puberty or below the age of maturity
Custody: the protective care or guardianship of someone or something
Upbringing: the treatment and instructions received by a child from his/her parents throughout his/her childhood
Separation of spouses: to live apart from each other; in this situation, the couples are unsure of the state of their marriage; it is an initial step to divorce which may not necessarily mean divorce.
However, it need be noted that in the context of today’s discussion, we refer to separation, as divorce.
Outlines:
Marriage in Islam and its objectives
Separation/Divorce in Islam and its consequences
Who is a child in Islam?
Child custody and upbringing in:
a. Islamic law
b. Nigerian customary law
Way out for Separated/Divorced Parents on the Custody and Upbringing of Children
Situation on ground and a few pieces of advice for couples
Closing
Marriage in Islam, its purpose and objectives
And among His signs is this, that He created for you, mates
from among yourselves; that ye may dwell in tranquillity with
them and He has put love and mercy between your hearts.
Verily in that are signs for those who know. Qur’an 30:21
Nikkah is a legal contract between a man and a woman. It is a religious duty and consequently, a moral safeguard as well as a social necessity. Al – Qur’an describes spouses in marriage relationships as “garments for each other” Qur’an 2:187
Of course, we all know that garments are a source of beautification for the body; they cover our defects, safeguard our honour and provide adequate warmth for us. This is what spouses ought to be for each other; because none of us would want to treat our garments badly. Nikkah is a form of ‘ibadah; engaging in it, is obeying the command of Allah and following the footsteps of Prophet Muhammad (S.A.W). Two popular statements of Prophet Muhammad {S.A.W.} on this readily come to mind:
Marriage is my tradition, whosoever keeps away there from
is not from amongst me
There is no celibacy in Islam
The purpose of marriage in Islam is to promote love, to form and uphold the family unit and of course, continue the procreation of the human race. Marital family institution is warm, pleasant and beautiful.
The opposite of a happily united, closely knit family is
Separation/Divorce in Islam and its consequences
Separation/Divorce is the termination of a marital union; it is to dissolve the bonds of matrimony between a married couple under the rule of law of a particular country, state or religion. Prophet Muhammad (S.A.W) in one of his sayings maintains that: “the most hateful thing that is permissible is divorce”.
In another of his statements, he reiterates: “Allah loves no permissible like marriage and Allah hates no permissible like divorce”. Islam in strong terms discourages divorce to an extent that it laid down the processes of arbitration when there are issues among spouses. Allah created so many opportunities for reconciliation in order to avoid divorce from taking place and encourage the reunion of the couples. Some of these include the rules that:
Talaq; the divorce pronounced by the husband is to be done while in a sane mind devoid of anger or duress.
It is to be pronounced during the period when the wife is free from menstruation; there was a time during the period of Prophet Muhammad {S.A.W} when Abdullah b. Umar divorced his wife during her menstrual period and to which the Prophet told Umar b. al-khattab (R.A) to order him to take the wife back; to keep her until she is clean, then wait till she gets her next period and becomes clean again; if he wishes to keep her, he can do so and if he wishes to divorce her. Q 2:228 – 232 and Sahih Bukhari (summarized) 1872
during the iddah (waiting) period, they {women} must be dealt with in equitable terms, they are entitled to your apartments, your feeding and upkeep; but note that there must be no sexual intercourse during this time for if such happens, the divorce process becomes nullified.
the mahr {lawful gift to the bride} which was already given to the wife is not to be taken back from her in case of divorce.
Note 257 of Yusuf A. Ali’s commentary of the glorious Qur’an
that you appoint an arbiter from among the two families when you fear a breach among couples. Q: 4:35
All these are conditions to be observed before divorce could take place. Allahu A kbar; do you see Allah’s perfection in this?
As much as Islam abhors divorce however, it is still tolerated under certain circumstances especially where it becomes detrimental to allow for the continuation of the union or where it is life threatening. A home devoid of love is cold, dark and sinister; a prison and a fiery hell. The recent case of Maryam Sanda readily comes to mind here. We pray Allah save us from marital calamity. Amin
Consequences of Separation/Divorce on the Children
Separation/Divorce generally has negative influence on the children. It leads to the problems of poor parenting and financial difficulties which affect the children negatively. Due to lack of contact and meaningful parent-child interactions, any form of separation/divorce on the parts of parents would definitely lead to serious consequences for the children and these include conduct disorders, delinquency and impulsive behaviour and emotional problems.
Numerous studies have found out that parental separation/divorce is associated with a range of negative outcomes for younger children and adolescents across various domains. It need be noted that off springs of separated/divorced parents experience many distressing thoughts and emotions. Such children have adjustment problems. Consider more of these negative effects of divorce/separation of parents on the children:
Emotional anxiety and conflicts
Constant psychological stress
Mood swing, irritability and lower self esteem
Intense sadness and frequent illness
Behavioural and social problems
Trouble with relationships and aggression especially at the adolescent stage
Prone to substance abuse, alcohol use and crime
Depression, stealing, cultism, street fights and hostile behaviour
Poor education, academic difficulties, school dropouts and socio economic position and the list is endless; for we can go on and on.
It is for the highlighted reasons that divorce must be the last resort in a relationship; where it is the last resort, the child is still not immune to its consequences especially where it is not well managed.
Who is a child in Islam?
A child in Islam is defined as:
every human that has not attained the age of maturity.
They are human beings between the stages of birth, the
developmental stages and maturity. He is a minor or a younger person than the age of maturity.
In Islam, every child has the right to legitimacy and a good name, shelter, protection, maintenance, proper care, health care, love and upbringing until they reach adulthood. They have the rights to separate sleeping arrangements, especially adolescents.
Child custody and upbringing in Islamic Law:
Custody in Islam is referred to as Hidhanat. It means the physical or material possession of the children. Hidhanat is derived from the Arabic root Hadhanat which can be summed up to mean “to embrace, to hug or to guard”. It encompasses the nursing, training and upbringing of the child. Child custody arises only after the separation/divorce of parents and not when the marriage is intact; so the separation of the parents begs for the need for custody. Meanwhile, the separation of parents should not affect the children because they are an amanah (trust) from the Almighty Allah. The love, care and attention of the mother is just as important as the training of the father. In Islamic jurisprudence, the father is the natural guardian of the person and property of the minor (child).
The basic consideration in child custody is the ability to provide for the child, the most natural, most considerate and most compassionate atmosphere to grow up as a better member of the society. Islam keeps the family institution in high esteem. While the man’s job is to earn livelihood and provide sustenance for the family, the wife’s duty is to give birth to the children, bring them up and groom them.
Women are naturally responsible for the exclusive breastfeeding of children and this naturally qualifies them as the custodian of children.
The mother is entitled to the custody of the children at least, until she remarries after separation/divorce. There is no verse in the Qur’an which discusses the custody of minors but classical Muslim jurists refer to the verse of fosterage which says that mothers should breastfeed their infants for up to two complete years to back justify their conclusion. Qur’an 2:233.
Prophet Muhammad (S.A.W) identified 3 principles that need be established in deciding the custody of the child and these are that:
• the mother possesses the priority rights of the child’s custody as long as she does not remarry; there was a time when a woman came to the noble Prophet Muhammad (S.A.W) and said:
O messenger of Allah, I carried my son in my womb;
suckled him my breast and held him on my lap; yet
his father has divorced me and wants to take him away
from me. The Prophet (S.A.W) replied: you are more
rightful to the children as long as you don’t remarry
Sunan Abu Dawud No 2276
• in a situation where both parents profess different religion, the custody of the child should go to that who follows the religion of Islam
• when the child has gone past 7 years of minority, he will be given an option to choose between both parents
The companions during their time followed these principles of the Prophet (S.A.W).
Law of sharia give mothers the preference while deciding the custody of the child in its initial years till age 7. However, schools of fiqh differ in custody laws for boys and girls after the age of 7. Consensus of opinions among the Jurists is that custody begins from the day the child is born to the time he can discern what is what but they disagree as to the period to be in custody thereafter. To the Maliki school of thought which is followed in West Africa, the custody of the male child extends up to the puberty and for the female, until she marries. This view is also upheld by all the four sunni schools of thought except Abu Hanifa who pegs his own at 7 years for the child’s transition to the father. This is then left for the court to decide based on considerations.
The underlying principles in deciding the custody of the child in Islam, remains that the child in his early years must not be deprived of the warmth, affection and full time attention that he needs in his growing years which he/she can experience with his/her mother better than his/her father. When a child reaches the age of maturity, the 3 considerations of the religion of the parents, choice of the child and his welfare are to be kept in mind.
According to Ibn Qayyimah, (a Sunni Islamic Jurist and Qur’an commentator), there are two types of upbringing. In one, the father prevails over the mother and that is in matters of money and marriage. In the other one, the mother prevails over the father and that is in matters of upbringing.
Child custody and upbringing in Nigerian law
In the Nigerian law the custody of the child after divorce, is rested on the best interest of the child. The care, control and maintenance of a child may be awarded by a court to one of the parents in a divorce or separation proceedings. Section 7(1) of the Matrimonial Causes Act provides that:
In the proceeding with respect to the custody, guardianship,
welfare or advancement or education of children of the
marriage, the court shall regard the interest of those children
as the paramount consideration and subject thereto the court
may make such order in respect to those matters as it thinks
proper. Who gets the custody of the child after divorce,
depends on a number of factors
Karibi-Whyte in the case of Williams versus Williams observed that:
the determination of the welfare of a child is a composite of
many factors. Consideration such as the emotional attachment
to a particular parent, mother or father, the inadequacy of the
facilities, such as educational, religious or opportunities for
proper upbringing are matters which may affect determination
of who should have custody
Specific factors to be considered by the court in granting the custody of the child to either of the parents include:
1. Age and sex of the child
2. The wishes of the child
3. Education and religion
4. Conduct of the parties
5. Adequacy of arrangement for the child
6. Medical and psychology factors
7. Nationality of parent
8. Equality of parents
In all, it is noteworthy that in the award of custody of a child by a court, the paramount interest of the child is the main key. However, it must be understood that the welfare of a child is not the only material provision in the house; it is not about good clothes, food, air conditioners, television alone; but it is more of the happiness of the child and his or her psychological development. Both parents are responsible for the custody, access and children’s upkeep in accordance with the agreement before an adjudicating body or a court of law. Naturally, both parents have a role to play during upbringing; the absence of one of them during child’s development years might lead to improper upbringing.
The responsibility of imparting societal norms and values is left largely in the hands of parents; so, when one of them is absent, inculcating the right attitude and behaviour in the children will be burdensome on one parent. The problem of juvenile delinquency, street urchins and touting are mostly as a result of absence of parental control.
Way out for Separated/Divorced Parents on the Custody and Upbringing of Children
Following the above model, Separated/Divorced parents can help their children against negative impact by:
Carrying the children along in the decision regarding your separation is very crucial; talk the children through the process and make them understand that you cannot stay together under one roof. Even in instances where you must divorce, there must be mutual agreement on your children; your amanah (trust) that is bestowed upon you by Almighty Allah
Discuss how best to manage the children; know the amount of time you give; you could have rotational weekends; the children could spend time with each of the parents rotationally
Getting good mentors for the children
Engaging in personal discipline programmes; don’t use them to settle scores
Get help for the restoration of your marriage; a child needs connection to both parents
The most important of all, is to ensure that the children are not deprived of anything subsequently after divorce.
Situation on ground and a few pieces of advice for couples:
Beloved brothers and sisters, truth must be told that we are more vulnerable when it comes to issue of divorce and Allah has been so merciful to leave no issue untouched in Islam. It is a religion of guidance and a perfect way of life.
Situation on ground from my day to day experience in my calling portray danger ahead especially with regard to the Muslim child; I am not referring to the elites here, but our other Muslims out there.
We need a quick intervention in eradicating the negative effects which separated home has created before it becomes a full blown calamity. There is no effective upbringing for the Muslim child out there. This is because the parents are either separated or divorced, the ones that are still together are not available for their proper upbringing and the Muslim child has become vulnerable for all forms of menace.
As individuals, we should stand up and be more concerned about the other children in our locality; be their friends, monitor them, mentor them, make an indelible mark on them and live a good legacy for them to follow and as you do this, abundant reward await you with the Almighty Allah. You can imagine if each one of us here, adopt a child for upbringing, monitoring and mentoring. The ripple effect would definitely be magnificent.
I call on our Governments to provide genuine free, quality and compulsory education to children without family support. The National Orientation Agency and the media is urged to embark on massive public awareness on issues of parenting skills, family values and unity. This would make for an intact family.
The Criterion is hereby urged to take the jihad further from here by looking for ways to collaborate with other Muslim organizations in conjunction with our ‘ulamah to use the opportunity of the approaching Ramadan to look into this. We need intense community dawah.on child upbringing. The problem of one Muslim somewhere is the problem of the ‘ummah everywhere. I am surely speaking the minds of my colleagues in the noble profession here. It would not be out of place for the Criterion to float a foundation for the Vulnerable children.
CONCLUSION
Custody and upbringing is very important in the overall wellbeing of the children. In most cases, custody and upbringing determines what and who the child turns out to be later in life. Children are gifts from Allah and a trust (amanah) in our custody. We must therefore care for them and preserve them by implementing the teachings of Islam and following the guidance of Prophet Muhammad (S.A.W). Remember, we are all shepherds and you would be queried as to how you led your sheep.
Beloved brothers and sisters in Islam, judging from the negative consequences inherent in it, parental separation should be as much as possible avoided. Let us learn to be patient, enduring and persevering. Allah Who fashioned us know the implications of a separated union and this is why He referred to separation/divorce as the most detestable permissible to Him. He referred to us as garments for each other. Garments are meant to provide warmth and shield us against harsh weather. We should remain the garments we are for each other and abhor separation; if for nothing but for the fact that Allah hates it and for the safeguard of our innocent children.
Enough of Muslim children being turned vulnerable for no fault of theirs but we their parents. We should rather overlook each other’s shortcomings, always seek for ways of reviving the love that brought you together in the first instance, promote love, unity and affection within the family units, be concerned about the Muslim child out there, purify your intentions and let all your thoughts and acts over your spouses and children be fee se bili lLahi.
On a concluding note, we need a lot of dua in the upbringing of our children. You might want to ask me, where were the parents of our noble Prophet Muhammad (S.A.W) in his upbringing? He is an exceptional individual whose upbringing cannot be compared to ours. He was raised by virtually none of his parents, but the world still celebrates his name till today.
Be proud to always say:
Rabbana hablanaa min azwaajina wa zzurriyyatinaa qurrata a’yuni wa j’alnaa lil muttaqeena imaama
Subhana Allahumma wa biham dika wan ash hadu an laa ilaha illa anta wa s taghfiruka wa atub ilayhi
Thank you for your attentive listening!
References
1. www.refworld.org
2. www.themuslimtimes.info
3. www.child encyclopedia.com confirm?
4. Zain ud Din Ahmad: Sahih al-Bukhari {summarized}; Dar-us-Salam Publications; Riyadh: Saudi-Arabia
5. resolutionlawng.com
6. en.m.wikipedia.org
7. Rafiq Aayesha (2014) Child custody in Classical Islamic Law and Laws of Contemporary Muslim World (an analysis); Pakistan
8. Lawal Mohammed (2019) Custody and Guardianship of Children – Sharia perspectives; Katsina state Nigeria
Note: Yusuf, Abdullahi Ali’s version of the commentary of The Holy Qur’an, Text, Translation was used throughout the write up.
* The above lecture was delivered on Sunday, 9th February, at the 2020 Annual Lecture of the Lagos District of The Criterion ( an association of Muslim Women in business and the professions).