Custody

A Refereed Study
Custody in the Light of the Sunnah of the Prophet (Peace be upon Him) A Study based on Hadeeth and Islamic Jurisprudence
Dr. Sulaimaan bin Abdullah Al-Qusayyir*
Assistant Professor at the Department of Sunnah and its Sciences, College of Sharee'ah and Islamic Studies, Qaseem University, Kingdom of Saudi Arabia.
Custody in the Light of the Sunnah of the Prophet
Introduction
All praise is due to Allah. We praise Him, seek His assistance and forgiveness. We seek refuge with Allah from the evil within ourselves and from our evil deeds. Whomever Allah guides will never be misguided, and whomever Allah misguides will never be guided. I bear witness that there is no god worthy of worship except Allah, and I bear witness that Muhammad is Allahs servant and messenger. May Allah bestow His peace and blessings upon him abundantly. Almighty Allah sent His Prophet Muhammad (may Allahs peace and blessings be upon him) with the final message and clear truth of Islam, sent down the Quran upon him and with it He granted him the authority of the Sunnah so that he would explain to people Allahs commandments and prohibitions. He undertook this task in the best possible manner. He conveyed the message with which he was entrusted, rightly advised his followers to adhere to the truth and strove hard in the way of Allah until all divine revelations were sent down and the religion was completed. One of the important goals of studying Prophetic traditions (ahaadeeth: sing. hadeeth) is to be aware of the juristic rulings they comprise. One way to do this is to collect traditions on the same topic and then examine them, study them and explain the juristic rulings they underlie. Almighty Allah has enabled me to collect traditions on the issue of custody and examine them on the basis of Prophetic traditions and Islamic jurisprudence. The importance of the present research paper lies in the following points: 1. It tackles a highly important issue that relates to the family and its stability. It takes into account the public interest of all its members and establishes who is rightfully entitled to the custody of infants, for minors are generally unable to take care of themselves or dispose of their own affairs by themselves, hence Islams obligation upon caring and capable adults to take custody of them. 2. It demonstrates some aspects of the beauty of Islam in this respect, for the rulings pertaining to guardianship are essentially laid down in the best interests of all members of society.
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Dr. Sulaimaan bin Abdullah Al-Qusayyir
3. I have not come across any research paper in this regard which examines all Prophetic traditions on the issue and shows the rulings relating to it. The methodology I have adopted in the present paper can be summarised in the following points: 1. I have collected and arranged all the Prophetic traditions in the body of the paper in such a way as to present those traditions whose chains of transmitters (isnaad) are the most authentic. Thus, I have mentioned those that are reported by al-Bukhaaree and Muslim first, then I followed them up with those reported in books of Sunan2and then those reported in other hadeeth books. If the hadeeth is not reported in Saheeh al-Bukharee or Saheeh Muslim and I cited its meaning from any of the other hadeeth books, I make mention of the sources where it has been reported, bearing in mind what has been termed in hadeeth terminology as al-mutaabaah at-aammah and al-mutaabaah al-qaasirah3, using for each one of them a separate symbol, namely the asterisk (*) at the beginning of the tareeq.4 To make it easy for the reader, when the number of mutaabaah narrators is more than one, I used the equals sign (=) next to the name of each of the narrators who meet at the same narrator in the chain of transmission of the hadeeth under study. 2. I have restricted myself to mentioning the name of the narrator whose narration provides internal corroboration (mutaabaah) without mentioning the narrators between him the hadeeth reporter who reported
That is to say, Sunan Abu Daawood, Sunan at-Tirmidhee, Sunan an-Nasaaee and Sunan Ibn Maajah. (Translators Note) 3 An intrinsic weakness in a hadeeth could be augmented by corroboration, which can be either internal corroboration (mutaabaah) or external (shaahid). Traditionists (muhaddithoon, scholars of hadeeth) are always in search of more witnesses in favour of a hadeeth which is reported by one source only; such research is termed i'tibaar. If a supporting narration is not found for a particular hadeeth, it is declared as fardh mutlaq(absolutely singular) or ghareeb. For example, if a hadeeth is reported through the following isnaad: Hammaad ibn Salamah --Ayyoob --- Ibn Seereen --- Abu Hurayrah --- The Prophet, research would be done to ascertain whether another trustworthy reporter has narrated it from Ayyoob; if so, it will be called mutaaba'ah taammah(complete mutaaba'ah); if not, a reporter other than Ayyoob narrating from Ibn Seereen would be sought: if so, it will be calledmutaaba'ah qaasirah (incomplete mutaaba'ah). (Translators Note) 4 Tareeq(pl. turuq)means transmission route or path and the various aspects in which a hadith is transmitted. The word route will be used throughout the paper for it. (Translators Note)
2
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it in his book. Therefore, if I say that a certain hadeeth was reported by such-and-such, this means it has been narrated directly from him. If, however, I say that it has been reported from the tareeq (route) of so-andso, this means that it has been narrated trough some narrators which I have deleted for the sake of brevity. After this, I provide a study and evaluation of the hadeeth. 3. As for juristic issues which these Prophetic traditions comprise, I have documented Muslim jurists opinions form amongst the leading scholars of the four schools of jurisprudence and their followers in each one of the issues discussed by referring to the major books complied by scholars in each of these schools of jurisprudence. All praise belongs to Almighty Allah for having enabled me to complete the present humble paper, for without His assistance, I would not have been able to produce it in the first place. I also thank all those who have assisted me in completing it, and I pray to Almighty Allah to reward them abundantly for their efforts and to raise their stations in Paradise. Finally, I pray to Allah to bestow His peace and blessings upon our Prophet Muhammad, his pure family and all his noble companions.
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Introduction
This introduction consists of three parts:
Part One: Linguistic and Technical Definitions of the Term Hadhaanah (Custody)
Linguistic Definition Linguistically, the Arabic word hadhaanah (also pronounced hidhaanah) is derived from the verb hadhanaor ihtadhana, which means to press to the bosom; it is also used to refer to the birds act of brooding its eggs. The other derivative, ihtidhaan, means putting someone or something on ones lap. When used with reference to a child, it means to bring up.5 Technical Definition Technically, the term hadhaanah means taking care of an infant, protecting him/her against any harm and attending to his/her needs and securing his/her interests.6
Part Two: Islamic Ruling on Hadhaanah

Hadhaanah (henceforth custody or guardianship) is obligatory in Islam, for failure to take custody of helpless infants will certainly make them vulnerable and subject to harm. In fact, protecting a child against harm is obligatory, in which case it is either an individual duty (fardh ayn) if there is someone to custody of him/her or if there is one but the child does not accept other than him/her, or a collective duty (fardh kifaayah)7 when there is more than one person to take custody of the child.8
An-Nihaayah Fee Ghareeb al-hadeeth Wal-Athar, 1/991 Lisaan al-Arab, 13/122; al-Qaamoos alMuheet, 1/1536; Anees al-Fuqahaa, p. 168; and al-Matla, 1/355. 6 Al-Bahr ar-Raaiq, 4/180; Haashiyat ad-Dasooqee, 2/526; Mughnee al-Muhtaaj, 2/344 and 3/453 and al-Mughnee, 6/82. 7 There are things which are obligatory on all individuals (fardh ayn), and others which are obligatory on the community or Ummah (fardh kifaayah, i.e., if some people fulfil them the rest are relieved of the obligation). (Translators Note) 8 Al-Bahr ar-Raaiq, 4/180; al-Fawaakih ad-Dawaanee, 2/102; Mughnee al-Muhtaaj, 3/453 and alMughnee, 9/298.
5
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Part Three: Why Custody

Custody is required in order to protect the person under guardianship against harm, bring him/her up in the best possible manner by attending to his/her needs, providing his food and drink, taking care of his cleanliness and that of his clothes, his physical appearance and sleep and wakefulness.9
Section One: Takhreej10and Study of Traditions on Custody

This section consists of two parts.
Part One:Takhreej11and Study of Traditions on Custody that are classified as Marfoo12

First Hadeeth Al-Bukhaaree said: Abdullaah ibn Moosaa narrated to us from Israaeel, from Abu Ishaaq, from al-Baraa ibn Aazib (may Allah be pleased with him) who said, When the Prophet (peace and blessings be upon him) intended to perform 'Umrah in the month of Dhul-Qadah, the people of Makkah did not let him enter Makkahuntil he settled the matter with them by promising to stay in it for three days only. When the document of the treaty was written, the following was mentioned: 'These are the terms on which Muhammad, Allah's Messenger agreed to make peace.' They said, We will not agree to this, for if we believed that you are Allah's Messenger we would not prevent you in the first place, but you are Muhammad ibn 'Abdullaah. The Prophet said, I am Allah's
Al-Bahr ar-Raaiq, 4/180; Haashiyat ad-Dasooqee, 2/526; al-Fawaakih ad-Dawaanee, 2/102; Mughnee al-Muhtaaj, 3/453 and Sharh Muntahaa al-Iraadaat, 3/248. 10Takhreej, with reference to a Prophetic tradition, refers to the act of citing the original reference hadeeth books in which it has been reported as well as indicating its level of authenticity, that is whether the tradition has been classified by hadeeth scholars as saheeh (authentic) or dhaeef (weak). (translators Note) 11See footnote no. 10. (Translators Note) 12Marfoo refers to a narration attributed to the Prophet (peace and blessings be upon him) specifically. This term does not refer to other than him unless otherwise specified. The category of marfoo is inclusive of narrations attributed to the Prophet regardless of their being muttasil, munqati` or mursal among other categories. (Translators Note)
9
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Messenger and also Muhammad ibn 'Abdullaah. Then he said to 'Ali, Rub off the words Allah's Messenger, but 'Ali said, No, by Allah, I will never rub off your name. So, Allah's Messenger took the document and wrote, 'This is what Muhammad ibnAbdullaah has agreed upon: No arms will be brought into Makkah except in their scabbards, and nobody from the people of Makkah will be allowed to go with him even if he wished to follow him and he (i.e. the Prophet) will not prevent any of his companions from staying in Makkah if the latter wants to stay. When the Prophet entered Makkah and the time limit elapsed, the Makkans went to Ali and said, Tell your friend (i.e. the Prophet) to go out, as the period agreed to has elapsed.The Prophet then went out of Makkah. The daughter of Hamzah13 ran after them (i.e. the Prophet and his companions), calling out, O Uncle! O Uncle!Ali14 received her and led her by the hand and said to Faatimah,15Take your uncle's daughter.Ali [ibn Abee Taalib] Zayd [ibn Haarithah]16and Jafar [ibn Abee Taalib]17 quarreled about her. Ali said, I have more right to her as she is my uncle's daughter. Jafar said, She is my uncle's daughter, and her aunt is my wife. Zayd said, She is my brother's daughter.18 The Prophet judged that she should be given to her maternal aunt and said,The maternal aunt is like the mother. He then said to Ali, You are from me and I am from you,, and said to Jafar, You resemble me both in
13Biographers
gave her different names, including Umaamah, Faatimah, Amatullaah and Umm al-Fadhl. She was one of the female companions of the prophet (peace and blessings be upon him). See at-Tabaqaat al-Kubraa, 8/48; Usd al-Ghaabah, 1/1314; al-Isaabah, 7/499; and Fath al-Baaree, 1/321. 14That is, Ali ibn Abee Taalib (may Allah be pleased with him), one of the Prophets cousins. 15Faatimah (may Allah be pleased with her) was Alis wife and the daughter of the Prophet (peace and blessings be upon him). 16That is, Zayd ibn Haarithah, son of Shraaheel al-Kalbee, the freed slave of Allahs Messenger (peace and blessings be upon him). He was a famous companion of the Prophet (peace and blessings be upon him). He was martyred at the Battle of Mutah during the Prophets time in the year 8 AH. See at-Taareehk al-Kabeer, 3/379; al-Isteeaab, 2/542; and al-Isaabah, 2/598. 17Jafar ibn Abee Taalib (may Allah be pleased with him) was also one of the cousins of the Prophet (peace and blessings be upon him). 18The hadeeth narrated by Abdullaah ibn Abbaas (may Allah be pleased with him) includes the following addition: Zayd had brotherly ties with Jafar. [These ties were founded on mutual support and assistance and had the sanctity of family ties]. Allahs Messenger (peace and blessings be upon him) established fraternal bonds between them.
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character and appearance, and said to Zayd, You are our brother [in faith] and our freed slave. Takhreej (*) This hadeeth was reported by al-Bukhaaree, 4/1551, no. 4005 on the authority of Ubaydullaah ibn Moosaa. (*) It was also reported by at-Tirmidhee, 4/313, no. 1904 on the authority of Muhammad ibn Ahmad ibn Mudawiyyah from Ubaydullaah ibn Moosaa. It was also narrated from Sufyaan ibn Wakee from his father from Israaeel. (*) It was also reported by an-Nasaaee in as-Sunan al-Kubraa, 5/127, no. 8455, on the authority of Ahmad ibn Sulaymaan from Ubaydullaah ibn Moosaa. At-Tirmidhees report is restricted to the Prophets words, The maternal aunt is like the mother. An-Nasaaees report is restricted to the Prophets statement to Ali (may Allah be pleased with him), You are from me and I am from you. At-Tirmidhee added in his report, There is a long story with regard to this hadeeth, and it is authentic (saheeh). Al-Bukhaaree and Muslim have also reported it in different places in their books without making mention of the story of Hamzahs daughter. Second Hadeeth Abu Daawood19 said: Abbaad ibn Moosaa narrated to us that Ismaaeel ibn Jafar narrated to them from Israaeel, from Abu Ishaaq from Haani and Hubayrah from Ali [ibn Abee Taalib] (may Allah be pleased with him) whosaid, When we left Makkah, the daughter of Hamzah followed us, calling out, O Uncle! O Uncle! Ali received her and led her by the hand and said [to Faatimah], Take your uncle's daughter. And she took her. Then he narrated the story and said, Jafar [ibn Abee Taalib] said, She is my uncle's daughter, and her aunt is my wife. The Prophet (peace and blessings be upon him) judged that she should be given to her maternal aunt and said, The maternal aunt is just like the mother.
19Sunan
Abu Daawood, 1/694, no. 2280.
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Takhreej (*) This hadeeth was reported by al-Khateeb in Taareekh Baghdaad, 4, 140, from Ahmad ibn Daawood ibn Tawbah, from Abbaad ibn Moosaa. (*) It was also reported by Ahmad, 1/98, no. 770, from Yahyaa ibn Aadam (=), and Hajjaaj ibn Muhammad (=) in 1/115, no. 931. It was also reported by an-Nasaaee in As-Sunan al-Kubraa, 5/127, no. 8456, from al-Qaasim ibn Yazeed al-Jarmee (=); and by al-Haakim, 3/130, from Ubaydullaah ibn Moosaa (=). The four narrators are therefore Yahyaa ibn Aaadam, Hajjaaj ibn Muhammad, al-Qaasim ibn Yazeed al-Jarmee and Ubaydullaah ibn Moosaa who narrated it from Israaeel with exact and similar wording. The wording used in the narration of Yahyaa ibn Aadam in the hadeeth reported by Ahmad has the words: The young girl must stay with her maternal aunt, for the maternal aunt is just like the mother. Al-Haakim said about the report, Its chain of transmitters (isnaad) is authentic (saheeh), but they did not report it with these wordings; rather, they agreed on the hadeeth narrated by Abu Ishaaq from al-Baraa in its shortened form. (*) It was also reported by abu Yalaa, 1/320, and al-Bayhaqee, 8/6, from the route of Zakariyyaa ibn Abu Zaaidah, from Abu Ishaaq. (*) It was also reported by Abu Daawood, 1/694, no. 2279, from the route of Abdur-Rahmaan ibn Abu Laylaa (=), and from the route of Abdul-Malik ibn Amr in 1/694, no. 2278. It was also narrated by alBazzaar, 3/106, from the route of Abu Aamir; and by at-Tahhaawee in Sharh Mushkal al-Aathaar, 8/94, form the route of Muhammad ibn Yahyaa ibn Abu Umar. It was also reported by al-Haakim, 3.232, and alBayhaqee, 8/6, from the route of Ibraaheem ibn Hamzah. Al-Bayhaqee also reported it as muallaq20 from Abdul-Azeez ibn Abdullaah alUwaysee. The four narrators are, therefore, Abdul-Malik ibn Amr, Abu Aamir, Muhammad ibn Yahyaa, Ibraaheem ibn Hamzah and al-Uwaysee.
20A
muallaq (hanging) hadeeth is one whose reporter omits the whole isnaad and quotes the Prophet(peace and blessings be upon him) directly.That is to say, the link is missing at the beginning. (Translators Note)
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They all narrated it from Abdul-Azeez ibn Muhammad from Yazeed ibn al-Haad who said: Abdul-Malik and Abu Aamir narrated it from Muhammad ibn Ibraaheem, from Naafi ibn Ujayr from his father Ujayr. He also said, Muhammad ibn Yahyaa, Ibraaheem ibn Hamzah and al-Uwaysee narretd it form Muhammad ibn Naafi ibn Ujayr from his father Naafi. Both Abdur-Rahmaan ibn abu Laylaa and Ujayr or Naafi narrated it from Ali ibn Abee Taalib (may Allah be pleased with him) with the exact of similar wording. Evaluation of the Hadeeth This hadeeth was reported on the authority of Ali ibn Abee Taalib (may Allah be pleased with him) from three routes: First Route: From Abu Ishaaq as-Subayee from Haani and Hubayrah from Ali ibn Abee Taalib (may Allah be pleased with him). The two students of Abu Ishaaq are Haani and Hubayrah ibn Yareem. As for the first one, his full name is Haani ibn Haani al-Hamdaanee al-Koofee. Al-Ajlee said that he is reliable, and Ibn Hibbaan mentioned him in his book Ath-Thiqaat (The Reliable Narrators). An-Nasaaee said about him, He is trustworthy. Ibn Sadcategorised him as weak by saying that he adoptedShiite views and that his narrations are rejected. Al-Bukhaaree reported a hadeeth narrated from him in the Book of Good Manners in his Saheeh. An-Nasaaee also reported a hadeeth narrated from him in the Book of the Qualities of Ali ibn Abee Taalib in his Musnad. Abu Daawood, atTirmidhee, an-Nasaaee and Ibn Maajah also reported hadeeth narrated from him.21 As for his second teacher, his name was Hubayrah ibn Yareem ashShabaamee al-Khaarifee abul-Haarith al-Koofee. Al-Ajlee classified him as trustworthy and Ibn Hibaan mentioned him in his book ath-Thiqaat (The reliable Narrators). Ahmad ibn Hanbal said, We prefer the narrations of Hubayrah ibn Yareem to those of al-Haarith al-Awar. He also said about him, His narrations are acceptable and he is more upright than others. By others he meant those from whom Abu Ishaaq narrated hadeeth.
21See
at-Tabaqaat al-Kubraa, 6/223; at-Taareekh al-Kabeer, 8/229; al-Jarh wat-Tadeel, 9/101; Tahdheeb al-Kamaal, 30/145; al-Kaashif, 2/333; and Taqreeb at-Tahdheeb, p. 570.
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Ibn Abu Haatim said, I asked my father, Can the narrations of Hubayrah ibn Yareem be used as evidence? he said, No, for he is not very well-known. Ibn Adiyy said, I believe that he is trustworthy. An-Nasaaee said, He is not that strong [in his narrations]. Ibn Hajar said, He is trustworthy, but he was known to adopt Shiite views. Abu Daawood, at-Tirmidhee, an-Nasaaee and Ibn Maajah also reported hadeeth narrated from him.22 Second Route: From Abdur-rahmaan ibn Abu Laylaa, from Ali ibn Abee Taalib (may Allah be pleased with him), and its isnaad is authentic (saheeh). Third Route: From Yazeed ibn al-Haad in two chains of narrators: 1. From Muhammad ibn Naafi ibn Ujayr, form his father Naafi, from Ali ibn Abee Taalib (may Allah be pleased with him). 2. From Muhammad ibn Ibraaheem, from Naafi ibn Ujayr, from his father Ujayr, from Ali ibn Abee Taalib (may Allah be pleased with him). Al-Bayhaqee said, We believe that the narration [of Muhammad ibn Yahyaa, Ibraaheem ibn Hamzah and Abdul-Azeez ibn Abdullaah alUwaysee from Muhammad ibn Naafi ibn Ujayr from his father] is more authentic. The hadeeth is strong with all these routes. The only problem lies in the first route,in which case it was narrated by Israaeel from Abu Ishaaq from al-Baraa ibn Aazib, which was reported by al-Bukhaaree, as mentioned above.23For Abu Ishaaq narrated it on one occasion from alBaraa ibn Aazib (may Allah be pleased with him) and, on another occasion, from Haani ibn Haani and Hubayrah ibn Yareem from Ali ibn Abee Taalib (may Allah be pleased with him). And it is for this reason that al-Bayhaqee strongly believes that the narration reported by
22See
al-Kaamil Fee adh-Dhuafaa, 7/133; al-Jarh wat-Tadeel, 9/101; Tahdheeb al-Kamaal, 30/145; and Taqreeb at-Tahdheeb, p. 570. 23See the first hadeeth.
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al-Bukhaaree was interpolated (mudraj)24 into the narration of al-Baraa ibn Aazib (may Allah be pleased with him). He said, It was narrated in this way by Ubaydullaah ibn Moosaa from Israaeel as a mudraj narration. Ismaaeel ibn Jafar narrated the story of Hamzahs daughter from Israaeel, from Ishaaq from Haani ibn Haani and Hubayrah from Ali ibn Abee Taalib (may Allah be pleased with him). It was also narrated by Ubaydullaah ibn Moosaa on another occasion separately. It was also narrated by Zakariyyaa ibn Abu Zaaidah and others from Abu Ishaaq. He also said, It may be that the narration of Abu Ishaaq from al-Baraa ibn Aazib with regard to the story of Hamzahs daughter was shortened, as we have mentioned. Then they narrated it from Ali ibn Abee Taalib (may Allah be pleased with him) in full.25 Ibn Hajar said, It seems to me that no interpolation (idraaj) is involved here. The fact of the matter is that the hadeethwas with Israaeel, and so was it with Ubaydullaah ibn Moosaa from him with both chains of narrators. In the first story in the narration of al-Baraa is complete and so is the story in the narration of Ali ibn Abee Taalib. The narration reported by al-Bayhaqees is on the authority of Zakariyaa from Abu Ishaaq from al-Baraa who said, Allahs Messenger (peace and blessings be upon him) stayed in Makkah for three days during the Compensatory Umrah26, and on the third day [the Makkans] said to Ali, This is the last day for your friend (i.e. the Prophet) to stay here according to the agreement we have concluded with him, so tell him to leave. So he informed him of this, to which he agreed and he left. Abu Ishaaq said, Haani ibn Haani narrated to me and he mentioned Alis tradition regarding the story of Hamzahs daughter in a more
24Idraaj
takes place when a narrator inserts into the text of a hadeeth a statement without intending it to be taken as part of the hadeeth. Such a statement can be described as mudraj when it is inserted. (Translators Note) 25Al-Bayhaqee, as-Sunan al-Kubraa, 8/6. 26 This umrah, or lesser pilgrimage, which took place in the sacred month of Dhul-Qadah in the year 7 AH, was called as such because the Prophet (peace and blessings be upon him) performed it to make up for the one which he intended to do during the previous year but the Makkan polytheists prevented him from entering the sacred precincts for the purpose. (Translator's Note)
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detailed fashion than it is narrated in the tradition narrated from alBaraa.27 Third Hadeeth Imaam Ahmad28 said: Abdullaah ibn Numayr narrated to us from Hajjaaj, from al-Hakam, from Muqassim from [Abdullaah] ibn Abbaas who said, When Allahs Messenger (peace and blessings be upon him) left Makkah, Ali left it along with Hamzahs daughter. Ali, Jafar and Zayd [ibn Haarithah] quarrelled about [who to take custody of] her and so they referred the matter to the Prophet (peace and blessings be upon him). Ali said, She is my uncle's daughter, and I am the one who has taken her [out of Makkah]. Jafar said, She is my uncle's daughter, and her aunt is my wife. Zaydsaid, She is my brother's daughter. Zayd had brotherly ties with Jafar.29Allahs Messenger (peace and blessings be upon him) established fraternal bonds between them. Allahs Messenger (peace and blessings be upon him) then said, The Prophet judged that she should be given to her maternal aunt and said to Zayd, You are my freed slave as well as her freed slave. He also said to Ali, You are my brother [in faith] and my close companion. Then he said to Jafar, You resemble me both in character and appearance, but her maternal aunt is more entitled to her custody. Takhreej (*) This hadeeth was reported by ibn Abu Shaybah, 6/375, no. 32141, and from his route Abu Yalaa, 4/266, no. 2379, from ibn Numayr with the exact wording. Ibn Abu Shaybahs narration in confined to the words: The Prophet (peace and blessings be upon him) said to Ali, You are my brother [in faith] and my close companion. (*) It was also reported by Abu Yalaa, 4/343, no. 2459, from the route of Ikrimah (=) and at-Tahhaawee in Mushkal al-Aathaar, 4/93-4, from Mujaahid (=); and both Ikrimah and Mujaahid narrated it from Abdullaah ibn Abbaas (may Allah be pleased with him). The narration by Mujaahid is shortened while that by Ikrimah is long. He said towards the end of it that the Prophet (peace and blessings be upon him)
27Fath
al-Baaree, 7/505. 1/230, no. 2040. 29These ties were founded on mutual support and assistance and had the sanctity of family ties. (Translators Note)
28Al-Musnad,
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said, Give the girl to her maternal aunt, for she is more entitled to her [custody]. Evaluation of the Hadeeth The isnaad of this hadeeth is weak (dhaeef) because of al-Hajjaaj ibn Artaah al-Koofee about whom Ibn Hajar30 said, He is knowledgebale and truthful but very forgetful and practises a great deal oftadlees.31 Al-Hajjaaj is, therefore, a mudallis and Ibn Hajar mentioned him in the fourth category of those who practise tadlees.32 Narrations of those who belong to this category are consideredrejected unless they clearly admit of their hearing, such as by saying "I heard."33
30See
Taqreeb at-Tahdheeb, p. 152.See also at-Taareekh al-Kabeer, 2/378; al-Kaamil Fee adhDhuafaa, 2/223; Tahdheeb al-Kamaal, 5/420; and al-Kaashif, 1/311. 31Tadlees (literally, concealing) refers to an isnaad (chain of transmission) where a reporter has concealed the identity of his sheikh. Ibn As-Salaah describes two types of tadlees: (1)Tadlees Al-Isnad(concealing in the chain of transmission): A person reports from his sheikh whom he met, what he did not hear from him, or from a contemporary of his whom he did not meet, in such a way as to create the impression that he heard the hadith in person. A mudallis (one who practices tadlees) here usually uses the mode "on the authority of" or "he said" to conceal the truth about the isnaad. (2)Tadlees Ash-Shuyookh (concealing the sheikh's name): The reporter does mention his sheikh by name but uses a less well-known name, by-name, nickname etc., in order not to disclose his sheikh's identity. A person who practises tadlees is called a mudallis.(Translators Note) 32In his essay Tabaqat Al-Mudalliseen, Ibn Hajar classified those who practised tadlees into five categories: (1)Those who are known to do it rarely, such as Yahyaa ibn Saeed Al-Ansari; (2)Those who are accepted by the traditionists, either because of their good reputation and relatively few cases of tadlees, for example, Sufyaan Ath-Thawree (d. AH 161), or because they reported from authentic authorities only, such as Sufyaan ibn Uyaynah (d. 198AH); (3)Those who practised it a great deal, so some traditionists have accepted such hadeeth from them that were reported with a clear mention of being heard directly. Among these are Abu Az-Zubayr Al-Makkee, whose ahaadeeth (sing. Hadeeth) narrated from the Companion Jaabir ibn Abdullaah have been collected in Saheeh Muslim. Opinions differ regarding whether they are acceptable or not; (4)Those who practised it a great deal, and all the traditionists agree that their ahaadeeth are to be rejected unless they clearly admit that they have heard them, such as by saying "I heard." an example of this category is Baqiyah ibn Al-Waleed; (5)Those who are disparaged due to another reason apart from tadlees; their ahaaseeth are rejected, even though they admit they have heard them directly. Exempted from them are reporters such as Ibn Laheeah, the famous Egyptian judge, whose weakness is found to be of a lesser degree. Ibn Hajar gives the names of 152 such reporters (Al-Asqalaanee 7f).Tadlees, especially that practised by those in the last three categories, is so disliked that Shubah (d. AH 170) said "Tadlees is the brother of lying" and "To commit adultery is more favourable to me than to report by way of tadlees". (Translators Note) 33 See Tareef Ahl at-Taqdees, p. 164.
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In fact, al-Hakam ibn Utaybah did not hear any narrations from Muqassim except for five traditions which do not include the one under study.34 Al-Haythamee also said, It was reported by Ahmad and Abu Yalaa and its chain of transmitters (isnaad) has al-Hajjaaj ibn Artaah who is known for his practice of tadlees.35 The internal corroboration by Ikrimah which he reported as well as that reported by ibn Abu Shaybah is not authentic, for it has Husayn ibn Qays ar-Rahbee al-Waasitee with the nickname of Hansh whom Ibn Hajar classified as matrook36 (abandoned).37 The internal corroboration by Mujaahid has Yahyaa ibn Saeed ibn Abaan al-Amawee, with the honorary title of Abu Ayyoob al-Koofee, who settled in Baghdad. Ibn Hajar said about him that he was truthful but not accurate in retaining hadeeth and narrating it.38 Such internal corroboration strengthens the hadeeth, as has been externally corroborated by the above-mentioned traditions narrated on the authority of al-Baraa ibn Aazib and Ali ibn Abee Taalib. Fourth Hadeeth Muhammad ibn Sad39 said: Hafs ibn Ghayyaath narrated to us from Jafar ibn Muhammad, from his father who said, While Hamzahs daughter was walking around among men, Ali took her by the hand and passed her on to Faatimah who was in her howdah. Ali [ibn Abee Taalib], Jafar [ibn Abee Taalib] and Zayd [ibn Haarithah] quarrelled about who to take [custody of] her, and their voices became so loud that they woke up the Prophet (peace and blessings be upon him) from his sleep.He said to them, Come forward and I will judge among you regarding her and anyone else. Ali said, Ali said, She is my uncle's
See Tahdheeb at-Tahdheeb, 2/373; Tahdheeb al-Kamaal, 28/462; and Jaami at-Tahseel, 1/167. See Majma az-Zawaaid, 4/593. 36A hadeeth that is categorised as matrook is one whose narrator is accused of falsehood and beingalone in this narration. It is also defined as a hadeeth transmitted by only onenarrator who has been accused of deception, falsehood, fisq (departure from thepath of Islam) and negligence, although it is not contrary to any narration oftrustworthy narrators (Translators Note) 37Taqreeb at-Tahdheeb, p. 168. 38Ibid. p. 590. 39At-Tabaqaat al-Kubraa, 4/35.
34 35
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daughter. I am the one who took her out and I am more entitled to her [custody]. Jafar said, She is my uncle's daughter, and her aunt is my wife. Zayd said, She is my brother's daughter. [The Prophet (peace and blessings be upon him)] said to each one something which pleased him and judged that she should be given to Jafar and said, The maternal aunt is just like the mother. Jafar then started jumping up and down around the Prophet (peace and blessings be upon him) who asked him, What is this? He replied, It is something which I have seen the Abyssinians do with their kings. Takhreej (*) This hadeeth was reported by Ibn Abu Shaybah, 6/11, no. 19081, from Hafs ibn Ghayyaath in a shortened form. Evaluation of the Hadeeth The chain of narrators (isnaad) of this hadeeth is weak (dhaeef) due the fact that it is mursal40; It was narrated by Muhammad ibn Ali ibn alHusayn ibn Ali ibn Abee Taalib, known as Abu Jafar al-Baaqir, about whom Ibn Hajar said, He is truthful and righteous.41 In fact, Muhammad did not live during the time of those involved in the incident narrated in the hadeeth. Al-Allaaee said about Muhammad, He narrated hurried (mursal)Prophetic traditions, without mentioning his grandfathers al-Hasan and al-Husayn and their father Ali [ibn Abee Taalib] (may Allah be pleased with them). He also narrated such traditions without mentioning Aaishah, Abu Hurayrah, a group of [other companions of the Prophet (peace be upon him)]he also narrated such traditions without mentioning Umar [ibn al-Khattaab].42 It does, however, get external corroboration from the two abovementioned traditions narrated on the authority of al-Baraa ibn Aazib and Ali ibn Abee Taalib.
40Mursal,
literally means 'hurried'. If the narrator between the Successor and the Prophet (peace and blessings be upon him) is omitted from a given isnaad, the hadeeth is mursal, e.g., when a Successor says, The Prophet said ... (Translators Note) 41Taqreeb at-Tahdheeb, p. 498. 42Jaami at-Tahseel, 1/266. See also Tahdheb at-Tahdheeb, 9/311.
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Fifth hadeeth Al-Husayn ibn al-Hasan ibn Harb al-Mirwazee reported in his book43 form Abdullaah ibn al-Mubaarak who said, Hajjaaj ar-Rusaafee narrated to us from his grandfather from az-Zuhree who said, It has come to our attention that Allahs Messenger (peace and blessings be upon him) said: The paternal father takes the position of the father in the absence of the father, and the maternal aunt takes the position of the mother in the absence of the mother. Al-Husayn also said, Abu Muaawiyah narrated to us from Hajjaaj from az-Zuhree who said that Allahs Messenger (peace and blessings be upon him) said: The paternal father takes the position of the father in the absence of the father, and the maternal aunt takes the position of the mother in the absence of the mother. Takhreej (*) This hadeeth was reported by Ibn Wahb in al-Jaami, p. 96, who said, Yoonus ibn Yazeed narrated to me from Ibn Shihaab who said, It has come to our attention, but Allah knows best, that Allahs Messenger (peace and blessings be upon him) said: The paternal father takes the position of the father in the absence of the father, and the maternal aunt takes the position of the mother in the absence of the mother. Evaluation of the Hadeeth The chain of narrators (isnaad) of this hadeeth is weak (dhaeef)due to the fact that it is mursal, for az-Zuhree, whose full name is Muhammad ibn Muslim ibn Ubaydullaah ibn Abdullaah ibn Shihaab, was born in the year 50 AH or maybe the one after it. The full name of Hajjaaj ar-Rusaafee is Hajjaaj ibn Yoosuf ibn Abu Manee Ubaydullaah ibn Abu Ziyyaad ar-Rusaafee. Ibn Hajar44 said about him that he was reliable and that al-Bukhaaree reported traditions on his authority in his Taaaleeq.45 It does, however, get external corroboration from the above-mentioned hadeethnarrated on the authority of al-Baraa ibn Aazib and Ali ibn Abee Taalib.
43Al-Birr
Was-Silah, pp. 42-3. at-Tahdheeb, p. 153. 45These refer to the traditions he cited without mentioning the chain of narrators (isnaad). (Translators Note)
44Taqreeb
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Sixth Hadeeth At-Tabaraanee46 said: Abu Shaykh Muhammad ibn al-Husayn alAsbahaanee and Ahmad ibn Zuhayr narrated to us from Muhammad ibn Harb an-Nashaaee, from Yahyaa ibn Abbaad47, from Qays ibn arRabeefrom Abu Husayn, from Khaalid ibn Sad, from Abu Masood who said that the Prophet (peace and blessings be upon him) said, The maternal aunt is just like the mother. Takhreej (*) This hadeeth was reported by ad-Daaraqutnee in al-Ilal, 6/194, as muallaq48 from Muhammad ibn Harb an-Nashaaee. Evalutaion of the Hadeeth Al-Haythamee said about this hadeeth, Itsisnaad has Qays ibn arRabee who has been classified as trustworthy (thiqah) by Shubah and [Sufyaan] ath-Thawree but classified as weak (dhaeef) by a group of hadeeth scholars. However, the rest of the transmitters [in the chain] are trustworthy.49 Ad-Daaraqutnee50 also said about it, It has been solely narrated by Muhammad by Harb an-Nashaaee from Abu Abbaad Yahyaa ibn Abbaad, from Qays, from Abul-Husayn, from Khaalid ibn Sad, from Abu Masood who attributed to the Prophet (peace and blessings be upon him). The correct view regarding it, however, is that it is mawqoof.51 It becomes thus clear that it is indeed mawqoof, in which case it is attributed to Abu Masood. Qays ibn ar-Rabee has been categorized by hadeeth scholars as weak as far as his memory is concerned, for his memory was badly affected when he grew older.
46Al-Mujam 47The
al-Kabeer, 17/243. printed al-Mujam al-Kabeer mentions that his name is Alaa, but it seems to be wrong, as I have not come across such a name at all in any biography. I have, however, found in Tahdheeb al-Kamaal, 25/39, that amongst the teachers of Muhammad ibn Harb an-Nashaaee was Yahyaa ibn Abbaad adh-Dhabuee, whose honorary title was Abu Abbaad. I have found the same name in ad-Daaraqutnees Al-Ilal, 6/194. 48See footnote no. 20. (Translators Note) 49Majma az-Zawaaid, 4/194. 50Ad-Daaraqutnee, al-Ilal, 6/194. 51According to Ibn al-Salaah: "Mawquf, refers to a narration attributed to a companion, whether a statement of that companion, an action or otherwise."(Translators Note)
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Ibn Hajar also said about him, He is truthful, but his memory became weak as he grew older.52 It does, however, get external corroboration from the above-mentioned hadeeth narrated on the authority of al-Baraa ibn Aazib and Ali ibn Abee Taalib. Seventh Hadeeth Abu JafarMuhammad ibn Umar al-Uqaylee53 said: Ahmad ibn Daawood narrated to us from Amr ibn al-Husayn from Yoosuf ibn Khaalid as-Samtee, from Abu Hurayrah al-Madanee54, from Mujaahid, from Abu Hurayrah (may Allah be pleased with him) who said that Allahs Messenger (peace and blessings be upon him) said, The maternal aunt is just like the mother. Takhreej I have not found this hadeeth anywhere else except in al-Uqaylees book. After reporting, al-Uqaylee said, It has no internal corroboration (mutaabaah), and it is associated with Yoosuf ibn Khaalid as-Samtee. Evaluation of the Hadeeth This hadeeth was solely narrated by Yoosuf ibn Khaalid as-Samtee who is classified by hadeeth scholars as matrook (abandoned).55 Ibn Hajar said about Yoosuf ibn Khaalid as-Samtee, [Hadeeth scholars] have classified him as matrook (abandoned) and Ibn Maeenclassified him as a liar.56 Its meaning does, however, get external corroboration from the abovementioned hadeeth narrated on the authority of al-Baraa ibn Aazib and Ali ibn Abee Taalib. Eighth Hadeeth Abu Daawood57 said: Mahmood ibn Khaalid as-Sulamee narrated to us from al-Waleed, from Abu Amr [al-Awzaaee], from Amr ibn Shuayb from his father from his grandfather Abdullaah ibn Amr who said, A woman said [to the Prophet (peace and blessings be upon him)],
52Taqreeb
at-Tahdheeb, p. 457. al-Uqaylee, 4/453.Biography of Yoosuf ibn Khaalid as-Samtee no. 2082. 54This is how I have found it in Dhuafaa al-Uqaylee, but I have not found his biography anywhere, nor has any hadeeth scholar mentioned him among the teachers of Yoosuf ibn Khaalid as-Samtee, nor among the students of Mujaahid. 55See footnote no. 36 (Translators Note) 56Taqreeb at-Tahdheeb, p. 610. See also Dhuafaa al-Uqaylee, 4/453 and al-Jarh Wat-Tadeel, 9/221. 57Sunan Abu Daawood, 1/693, hadeeth no. 2276.
53Dhuafaa
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Messenger of Allah, my womb is a vessel to this son of mine, my breasts are a water-skin for him, and my lap is a guard for him, yet his father has divorced me and wants to take him away from me. The Messenger of Allah (peace and blessings be upon him) said, You have more right to him as long as you do not get married. Takhreej (*) this hadeeth was reported by al-Haakim, 2/225, and al-Bayhaqee, 8/4, from the route of Uthmaan ibn Saeed ad-daarimee, form Mahmood ibn Khaalid with similar wording. Al-Haakim said about it, Its isnaad is authentic (saheeh). (*) It was also reported by Abdur-Razzaaq, 7/153, no. 12597, and Ahmad, 2/182, no. 6707, and ad-Daaraqutnee, 3/305 from the route of Ibn Jurayj (=). It was also reported by Abdur-Razzaaq, 7/153, no. 12596, Ahmad, 2/203, no. 6893, and ad-Daaraqutnee, 3/304 from the route of alMuthannaa ibn as-Sabaah (=). They both narrated it from Amr ibn Shuayb with similar wording. However, the wording in the narration of al-Muthannaa as reported in Ahmads al-Musnad is short. Evaluation of the Hadeeth This hadeeth was narrated by Amr ibn Shuyab from his father from his grandfather Abdullaah ibn Amr. The full name of Amr ibn Shuyab is Amr ibn Shuyab ibn Muhammad ibn Abdullaah ibn Amr ibn al-Aas al-Qurashee asSahmee, whose honorary title (kunyah) is Abu Ibraaheem. Some biographers assert that his honorary title was Abu Abdullaah alMadanee, and others assert that it was Abu Abdullaah at-Taaifee. He died in the year 118 AH. Al-Bukhaaree said, I saw Ahmad, Ali ibn al-Madeenee and Ishaaq ibn Raahawayh, and the majority of our companions use traditions narrated on the authority of Amr ibn Shuyab as binding evidence. Yaqoob ibn Shaybah said, I have not seen anyone among our companions who study hadeeth and the hadeeth narrators criticizing Amr ibn Shuyab at all and they all consider traditions narrated on his authority as authentic. In fact, he is trustworthy and accurate in the memorization and transmission of hadeeth.
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Al-Ajlee, Ahmad ibn Saalih al-Masree, ad-Daarimee, abu Zurah arRaazee and an-Nasaaee classified him as trustworthy, and Ibn Shaaheen mentioned him in his list of the trustworthy hadeeth transmitters. Ad-Dawree and Muaawiyah quoted Ibn Maeen as saying about him that he was reliable. Ahmad ibn Zuhayr said about him, He is not that reliable. Yahyaa ibn Saeed al-Qattaan said, Given that reliable narrators narrate hadeeth from him, he is then reliable and his hadeethcan certainly be used as binding evidence. Ishaaq ibn Raahawayh said, If the narrator who narrates a hadeeth from Amr ibn Shuayb is considered reliable, then his narrations are just like those narrated by Ayyoobs from Naafi from [Abdullaah] ibn Umar. An-Nasaaee said about him, He is trustworthy, and Ahmad said, Sometimes we use his narrations as binding evidence and sometimes we feel something against doing so. He also said, He has some narrations that are considered munkar (rejected). We do write his narrations but we do not considerthem as binding evidence. Al-Aajuree said, I asked abu Daawood, Do you consider the narrations of Amr ibn Shuayb to be binding evidence? He said, No, not even half of that. Ibn Taymiyyah said, The leading Muslim scholars and the majority of scholars consider traditions narrated by Amr ibn Shuayb to be binding evidence as long as they have been authentically narrated from him. Adh-Dhahabee said, His narrations from his father from his grandfather are not considered mursal or munqati.58The claim that they have been transmitted through the procedure of wijaadah59 or that some
hadeeth that is munqai (literally 'broken'), is one in which the isnaad of people reporting the hadeeth is disconnected at any point. The isnaad of a hadeeth that appears to be muttasil (refers to a continuous chain of narration in which each narrator has heard that narration from his teacher), but one of the reporters is known to have never heard hadith from his immediate authority, even though they lived at the same time, is munqati, It is also applied when someone says "a man told me". (Translators Note) 59Wijaadah or find, which consists in finding narrative material in someone's handwriting (or its equivalent such as an authorized, verified publication) and subsequently narrate it from them whether a contemporary or not: these are all types of riwaayah or narration (not types of permission), and may be combined with the above types of permission to strengthen
58A
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of them have been transmitted through the procedure of samaa (listening), this is highly questionable. We are not saying that his narrations belong to a group of the highest degree of authentic narrations. Rather, they are the type of hasan (good) narrations. He also said, His narrations are classified as hasan and even better than that. Commenting on the difference of hadeeth scholars views regarding Amr ibn Shuayb, al-Haafidh Ibn Hajar writes in at-Tahdheeb, Amr ibn Shuayb has been classified by some [hadeeth scholars] as weak but the majority of [hadeeth scholars] have classified him as reliable. Some have also considered his narrations from his father from his grandfather as weak. Those who have classified him as weak have only done so with regard to his narrations from his father from his grandfather. As for his narrations from his father, perhaps he sometimes did so by way of tadlees60 through the use of the preposition from. However, if he said, My father narrated to me, then his narrations narrated in this way are definitely authentic. As for his fathers narrations from his grandfather, by grandfather he meant Abdullaah ibn Amr. In fact, Shuayb himself stated that he personally heard narrations from Abdullaah ibn Amr in some narrations and this has been authenticated. He also mentioned some narrations which clearly state that by grandfather he meant Abdullaah ibn Amr and that Shuayb did indeed hear narrations from him. Ibn Hajar then writes, However, did he hear all the narrations he narrated from him, or did he only hear some of them and he learnt about the rest from a book? I believe that the second assumption is correct, and it clearly provides the reason behind the multiplicity of views regarding him. Ibn Hajar also classified him in his book at-Taqreeb as truthful and mentioned him in the second category of narrators accused of practicing tadlees which have been tolerated by hadeeth scholars.61
them in descending order, the absolute highest type of permission being the combination of (1) with (a). 60See footnote no. 31. (Translators Note) 61See at-Taareekh al-Kabeer, 6/2578; at-Tirmidhee, al-Ilal al-Kubraa, 1/325; Ibn Shaaheen, Taareekh ath-Thiqaat, p. 365; al-Kaamil fee adh-Dhuafaa, 5/114; al-Jarh Wat-Tadeel, 6/1323; alBayhaqee, as-Sunan al-Kubraa, 7/318; Majmoo Fataawaa Ibn Taymiyyah, 18/8; Tahdheeb al-
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His father is Shuayb ibn Muhammad ibn Abdullaah ibn Amr ibn alAas al-Qurashee as-Sahmee. He narrated hadeeth from his grandfather Abdullaah ibn Amr and Abdullaah ibn Abbaas. Those who narrated hadeeth from him included his own son Amr and Thaabit al-Bannaanee. Ibn Hibbaan mentioned him in his book of reliable narrators ath-Thiqaat. Adh-Dhahabee said about him in his book al-Kaashif, He is truthful. He also mentioned in his book as-Siyar that all he knew about him was that he was trustworthy. In his book al-Meezaan, he also said, in the course of writing the biography of his son Amr, His father, Shuayb, has not been criticized [by any hadeeth scholar], but I do not know of anyone who classified him as reliable. Ibn Hibbaanm did, however, mention him in his book or reliable narrators ath-Thiqaat. Ibn Hajar said about him, he is truthful, and it has been confirmed that he narrated hadeeth from his grandfather. The four hadeeth collectors have reported hadeeth on his authority.Al-Bukhaaree has also reported hadeeth on his authority in the Book of Reciting behind the Imaam and the Book of Manners [in his Saheeh]. Ibn al-Qayyim also said, People needed the authority of Amr ibn Shuayb regarding this hadeeth, and they found it inevitable to consider his narration in this respect as binding evidence. In fact, there is no other tradition which states that a mother can have custody of her child as long as she does net get married except this one, and the four leading Muslim jurists as well as other scholars hold this view. Amr ibn Shuayb did actually clearly state that by grandfather [in thechain of narrators] he meant his grand grandfather Abdullaah ibn Amr [ibn aAas, one of the prophets companions]; therefore, the claim of those who say that by grandfather it was meant Muhammad, Shuabs father, is ungrounded, in which case the hadeeth is considered mursal. [But this is not true, for] he personally heard hadeeth from his grand grandfather Abdullaah ibn Amr, in which case the claim of those who say that his narrations are considered munqati62is unfoundedIn fact, al-Bukhaaree
Kamaal, 22/64; Siyar Alaam an-Nubalaa, 5/165; al-Meezaan, 3/263; Tahdheeb at-Tahdheeb, 8/48; Taqreeb at-Tahdheeb, p. 423; and Tareef Ahl at-Taqdees, p. 123. 62See footnote no. 58. (Translators Note).
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considered his narrations to be binding evidence and mentioned that they are authentic (saheeh). He also said, Al-Haakim mentioned in his book Uloom al-Hadeeth that it is generally agreed that his narrations are authentic.63 It follows, therefore, that the narration of Amr ibn Shuayb are very well-known, and that the majority of Muslim jurists have considered it as binding evidence, as will be made clear in the second section of the paper. It is generally considered hasan (good), but Allah knows best. Ninth Hadeeth Abu Daawood64 said: al-Hasan ibn Ali al-Halawaanee narrated to us from Abdur-Razzaaq and Abu Aasim, from Ibn Jurayj who said that Ziyyaad informed him from Hilaal ibn Usaamah that Aby Maymoonah Salmaa, one of the freed slaves in Madeenah who was a truthful man, said, While I was sitting with Abu Hurayrah a Persian woman who had been divorced by her husband came along with her little boy about whose custody they had quarrelled, and she said to him with a heavy Persian accent, Abu Hurayrah, my husband wants to take my son away from me. Abu Hurayrah said, Cast a lot on this, also imitating the Persian accent. When her husband came he said, Who is contesting my right to my son? Abu Hurayrah replied, I am not trying to do so, and Allah is my witness, but I heard a woman say to Allahs Messenger (peace and blessings be upon him), while I was sitting with him, Messenger of Allah, my husband wants to take my son away from me even though he has brought over water for me from the well of Abu Inabah and given me a lot of benefit.Allahs Messenger (peace and blessings be upon him) replied, "Both of you can cast a lot on this." When the husband heard that, he said, "Who will quarrel with me regarding this son of mine?" The Prophet (peace and blessings be upon him) said, "O son! This is your father and this is your mother; grasp the hand of the one you want to hold." The child grasped the mother's hand and she took him away.
63See
Ibn Hibbaan, ath-Thiqaat, 4/357; Tahdheeb al-Kamaal, 12/534; al-Kaashif, 1/488; al-Meezaan, 2/319; Zaad al-Maaad, 5/434; and Taqreeb at-Tahdheeb, p. 267. 64Sunan Abu Daawood, 1/693, no. 2277.
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Takhreej (*) This hadeeth was reported by ad-Daarimee, no. 2283 from the route of al-Bayhaqee, 8/3, from Abu Aasim, with similar wording. (*) It was also reported by an-Nasaaee, 6/185, no. 3496, from the route of Khaalid ibn al-Haarith (=) and Abdur-Razzaaq, 7/157, no. 12611 (=). It was also reported by al-Haakim, 4/108, from the route of Abdullaah ibn al-Mubaarak (=). All of these three narrators narrated this hadeeth from Ibn Jurayj with similar wording. (*) It was also reported by at-Tirmidhee, 3/638. No. 1357; Ibn Maajah, 2/787, no. 2351; Ahmad, 2/246, no. 7346; ash-Shaafiee, p. 288; alHumaydee, 2/463; Saeed ibn Mansoor, 2/110, no. 2275; Abu Yalaa, 10/512; and al-Bayhaqee, 8/3, from the route of Ibn Uyaynah (=) and Ibn Abu Shaybah, 4/179, no. 19117, from the route of Abu Muaawiyah (-). Both Ibn Uyaynah and Abu Muaawiyah narrated it from Ziyaad ibn Sad in a shortened form which reads, The Prophet (peace and blessings be upon him) gave a little boy the choice of choosing to stay with his father or mother. The narrations reported by Ibn Maajah and Ahmad have the addition, O son, this is your mother and this is your father. Ibn Uyaynah mentions Hilaal ibn Maymoonah in his narration instead of Hilaal ibn Usaamah. Abu Muaawiyah said in his narration, Hilaal ibn Abu Maymoonah narrated from his father.65 At-Tirmidhee said about it, This hadeeth is good (hasan) and authentic (saheeh), and the name of Abu Maymoonah is Saleem. Al-Haakim also said about it, Its chain of transmitters (isnaad) is authentic. (*) It was also reported by Ahmad, 2/447, no. 9770,; Ibn Abu Shaybah, 4/180, no. 19121; and al-Bayhaqee, 8/3 from the route of Yahyaa ibn Abu Katheer from Abu Maymoonah, from Abu Hurayrah with similar wording.
65Al-Mizzee
said in the course of writing the biography of Abu Maymoonah, It has been asserted that he is the father of Hilaal ibn Abu Maymoonah, but the correct view is that he is not his father. Sufyaan ibn Uyaynah said: Ziyaad ibn Sad narrated from Hilaal ibn Abu maymoonah from Abu Maymoonah (who is not his father) from Abu Hurayrah. And he mentioned the hadeeth regarding the child who was given the choice to stay with either his father or mother. See Tahdheeb al-Kamaal, 34/338.
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Evaluation of the Hadeeth This hadeeth has been narrated on the authority of Abu Maymoonah alFaarisee al-Madanee al-Abaar who was a freed slave. Scholars have given him three different names, namely Saleem, Salmaan and Usaamah. An-Nasaaee and al-Ajlee categorized him as trustworthy, and Yahyaa ibn Maeen categorized him as righteous. Ibn Jurayj said, Ziyaad ibn Sad narrated from Hilaal ibn Abu Maymoonah, from Abu Maymoonah Saleem, one of the freed slaves in Madeenah known for his truthfulness, from Abu Hurayrah. And he mentioned the hadeeth. Al-Haafidh Ibn Hajar said, Al-Bukhaaree, Haatim, Muslim and alHaakim Abu Ahmad made a distinction between Abu Maymoonah alAbaar who narrated Prophetic traditions from Abu Hurayrah and from him Qataadah narrated Prophetic traditions and Abu Maymoonah alFaarisee whose name was Saleem, from whom Abu an-Nadhr and others narrated Prophetic traditions. His name in Abu Daawoods report is Salmaan. Ad-Daaraqutnee said, Abu Maymoonah, who narrated Prophetic traditions from Abu Hurayrah and Qataadah narrated them from him and has been categorized [by hadeeth scholars] as majhool (unknown) whose narrations are rejected. This confirms the fact that he is not actually Abu Maymoonah al-Faarisee. Adh-Dhahabee writes in al-Kaashif, He narrated Prophetic traditions from Abu Hurayrah and Samurah; Qataadah and Yahyaa ibn Abu Katheer narrated traditions from him. He is trustworthy. Ibn Hajar also writes in Taqreeb at-Tahdheeb, He is trustworthy, and the Four Hadeeth Collectors66 have reported narrations from his route.67 The rest of hadeeth transmitters are categorized as trustworthy, and alBukhaaree and Muslim have reported traditions in whose isnaad they have mentioned them.
66That 67See
is, Abu Daawood, at-Tirmidhee, an-Nasaaee and Ibn Maajah. (Translators note) al-Ajlee, ath-Thiqaat, 1/426; al-Jarh Wat-Tadeel, 2/284, Tahdheeb al-Kamaal, 34/338 alKaashif, 2/466 Tahdheeb at-Tahdheeb, 12/253; and Taqreeb at-Tahdheeb, p. 677.
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This hadeeth is, therefore, authentic (saheeh). It has been categorized as such by at-Tirmidhee and al-Haakim, as we have mentioned above. AzZaylaee also mentions in Nasb ar-Raayah that Ibn al-Qattaan has also categorized him as such. Ibn Hajar states the same thing in his book atTalkhees al-Habeer. Tenth Hadeeth Abu Daawood68 said: Ibraaheem ibn Moosaa ar-Raazee narrated to us from Eesaa, from Abdul-Hameed ibn Jafar who said that his father informed him on the authority of his grandfather Raafi ibn Sinaan that he (i.e. Raafi ibn Sinaan) embraced Islam and his wife refused to embrace it. She came to the Prophet (peace and blessings be upon him) and said, [She is] my daughter; she is weaned or maybe he said she is about to wean. Raafi' said, [She is] my daughter. The Prophet (peace and blessings be upon him) said to him, Sit down on one side. He also said to her, Sit down on one side. He then seated the girl between them and said to them, Call her. The girl inclined to her mother. The Prophet (peace and blessings be upon him) said, O Allah, guide her. The daughter then inclined to her father, and he took her. Takhreej (*) this hadeeth was reported by al-Haakim, 2/225, and al-bayhaqee, 8/3, from the route of al-Hasan ibn Ali ibn Ziyaad, from Ibraaheem ibn Moosaa ar-Raazee. Al-Haakim said about it, Its isnaad is authentic. (*) It was also reported by Ahmad, 5/446, no. 23808, from Ali ibn Bahr from Eesaa ibn Yoonus. (*) It was also reported by Abdur-Razzaaq, 7/160, no. 12616, from whose route it was reported by an-Nasaaee, 6/185, no. 3495, and Ahmad, 5/447, no. 23810, from ath-Thawree; it was also reported by Ibn Maajah, 2/788, no. 2352; an-Nasaaee in as-Sunan al-Kubraa, 4/83, no. 6387; Ibn Abu Shaybah, 6/9, no. 29062, and 6/285, no. 31460 and Ahmad, 5/446, no. 23806, from the route of Ibn Ulayyah; it was also reported by Saeed ibn Mansoor, 2/110 and Ahmad, 5/446, no. 23807, from Hushaym. An-Nasaaee also reported it in as-Sunan al-Kubraa, 4/83, no. 6388, from the route of Hammaad ibn Salamah.
68Sunan
Abu Daawood, 1/681, no. 2244.
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The four narrators, that is ath-Thawree, Ibn Ulayyah, Hushaym and Hammaad, narrated it from Uthmaan al-Battee (=). It was also reported by an-Nasaaee in as-Sunan al-Kubraa, 4/83, from the route of al-Muaafaa ibn Imraan (=), and by ad-Daaraqutnee, 4/43, from the route of Ali ibn Ghuraab and Abu Aasim an-Nabeel (=). The four narrators, that is Uthmaan al-Battee, al-Muaafaa ibn Imraan, Ali ibn Ghuraab and Abu Aasim, narrated it from Abdul-Hameed ibn Jafar, with similar wording. Uthmaan al-Battee named the man Abdul-Hameed ibn Salamah. He also said in ath-Thawrees narration which he narrated from him, Abdul-Hameed ibn Salamah al-Ansaaree narrated from his father from his grandfather that he (i.e. his grandfather) embraced Islam but his wife refused to embrace it. So he took a little child of his [to the Prophet (peace and blessings be upon him)]. He also said in Ismaaeel narration which he narrated from him, Abdul-Hameed ibn Salamah narrated from his father from his grandfather that his parents, one of them was Muslim but the other was not, quarrelled [about who to take custody of their child], and he gave her the choice [to stay with either his father or mother]. He also said in Hushayms narration from him, Abdul-Hameed ibn Salamah al-Ansaaree narrated that his grandfather embraced Islam during the time of Allahs messenger (peace and blessings be upon him) but his wife refused to embrace it He also said in Hammaad ibn Salamahs narration from him, AbdulHameed ibn Salamah narrated from his father that a man embraced Islam but his wife did not embrace it an-Nasaaee, however, categorized this tradition as mursal. Abu Aasim an-Nabeel said in his narration that the name of the girl mentioned in the hadeeth was Umayrah. Evaluation of thehadeeth This hadeeth has been reported on the authority of Abdul-Hameed about whose namehadeeth scholars have expressed different opinions: Eesaa ibn Yoonus and al-Muaafaa ibn Imraan said, Abdul-Hameed ibn Jafar said that his father narrated hadeeth to him from his grandfather Raafi ibn Sinaan.
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Abu Aasim and Ali ibn Ghuraab said, Abdul-Hameed ibn Jafar alAnsaaree said that his father narrated to him from his grandfather Raafi ibn Sinaan. Scholars have also expressed different opinions regarding this narration as to Uthmaan al-Battee who narrated the hadeeth from him: Ath-Thawree and Ibn Ulayyah said, Uthmaan al-Battee narrated from Abdul-Hameed ibn Salamah from his father from his grandfather. Hushaym said, Uthmaan al-Battee narrated from Abdul-Hameed ibn Salamah al-Ansaaree narrated that his grandfather embraced Islam. Hammaad ibn Salamah said, Uthmaan al-Battee narrated from Abdul-Hameed ibn Salamah from his father that a man embraced Islam... The narration reported from Uthmaan al-Battee from Abdul-Hameed ibn Salamah is the same as the one reported by the majority of narrators who said that his name was Abdul-Hameed ibn Jafar, and perhaps the correct view is that the narration reported by the majority of narrators is more correct. Al-Bukhaaree said, while in the course of discuss Abdul-Hameed ibn Jafar, Some have said that his name is Abdul-Hameed ibn Salamah, but this is an erroneous assumption.69 Al-Haafidh Ibn Hajar said, Ad-Daaraqutnee reported a hadeeth from his route and said, Abdul-Hameed ibn Salamah, his father and his grandfather are unknown. He also said, His name is Abdul-Hameed ibn Yazeed ibn Salamah. He also said the same thingin his book AsSunnah, citing a narrationfrom Salamah, the grandfather of AbdulHameed ibn Yazeed ibn Salamah, on traditions relating to Allahs descent70 [to the lowest heaven in the last third of the night]. In fact,Ibn al-Qattaan regards as preponderant the view that the narration of Abdul-Hameed ibn Jafar from his father from his grandfather is not the same as the narration of Abdul-Hameed ibn Salamah from his father
69At-Taareekh 70That
al-Kabeer, 6/51. is, in a manner that suits His majesty and which is known only to Him. (Translators Note)
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from his grandfather due to the different context between them and criticizes those who confuse them.71 Ibn Hajar also said about this hadeeth, Scholars have expressed a difference of opinion regarding its isnaad which has different names, but Ibn al-Qattaan considers the narration of Abdul-Hameed ibn Jafar to have more weight in its favour.72 At-Tahhaawee said, Abdul-Hameed, who is the narrator of this hadeeth, is actually Abdul-Hameed ibn Jafar, and whoever attributes it to other than Jafar has actually attributed it to the honorary title (kunyah) of his father or that of any of his grandfathers with the same name. In fact, Ahmad ibn Muhammad al-Baghdaadee narrated to me from Abu Hafs Amr ibn Ali who said, I heard Abu Aasim say that he heard Abdul-Hameed ibn Jafar say: I narrated the hadeeth on the Prophets giving the child the option to choose to stay with either his father or mother in al-Ahwaaz. It becomes clear, therefore, that AbdulHameed mentioned in these narrations is actually Abdul-Hameed ibn Jafar.73 The full name of this narrator is Abdul-Hameed ibn Jafar ibn Abdullaah ibn al-Hakam ibn Raafi ibn Sinaan al-Ansaaree al-Awsee. Another view states that Raafi ibn Sinaan is his grandfather on his mothers side. Ahmad categorised him as trustworthy and said that he heard Yahyaa ibn Saeed categorised him as weak (dhaeef) due to the fact that he adopted some views espoused by al-Qaadariyah.74
71Tahdheeb 72See
at-Tahdheeb, 6/104. See Nasb ar-Raayah, 3/270. Talkhees al-Habeer, 4/11. 73Sharh Mushkal al-Aathaar, 8/104 74Al-Qadariyah was one of the earliest philosophical schools of thought in Islam. The doctrine espoused notions of rationalism and contained elements of Greek philosophy. Qadarees(followers of al-Qaadiriyah)maintain that Allah gave man free will, without which one cannot be fully accountable for one's actions. Free will also means that Allah cannot know a man's actions in advance. Qadarees also deny other core tenants of the Sunni belief including the belief in the punishment of the grave. They also deny that an authentic hadeeth is evidence for establishing a proposition in the Islamic aqeedah unless it is transmitted in mutawaatir form, that is, one conveyed by narrators so numerous that it is not conceivable that they have agreed upon an untruth thus being accepted as unquestionable in its veracity. The number of narrators is unspecified. (Translators Note)
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Ibn Maeen also categorised him as trustworthy and righteous. Uthmaan ad-Daarimee said about him, quoting Ibn Maeen, He is reliable. Ibn Sad said that he was reliable and that he narrated a great deal of Prophetic traditions. Abu Haatim classified him as truthful, and an-Nasaaee said that he was trustworthy. Ibn Hibbaan mentioned him amongst trustworthy narrators and added that it might be that he made mistakes sometimes. As-Saajee said that he was trustworthy and truthful. An-Nasaaee mentioned in his book Kitaab adh-Dhuafaathat he was not strong [in transmitting hadeeth], and al-Bukhaaree reported traditions from him in his Taaaleeq,75 and so did Muslim and the Four Hadeeth Collectors.76 Adh-Dhahabee said, He narrated traditions from the paternal uncle of his father Umar ibn al-Hakam and Naafi, and al-Qattaan and Ibn Wahb narrated traditions from him. He is trustworthy, but ath-Thawree criticised him due to the fact that he adopted some views espoused by al-Qaadariyah. Ibn Hajar said, He is trustworthy, but ath-Thawree criticised him due to the fact that he adopted some views espoused by al-Qaadariyah. He died in 153 AH. It seems to me that he is trustworthy, and the reason why he was classified by some hadeeth scholars as weak was due to the fact that he adopted some views espoused by al-Qaadariyah.Allah knows best.77 This hadeeth has been authenticated by al-Haakim. There is a difference of opinion regarding it, but the preponderant view has been stated. Perhaps it is a good (hasan) hadeeth, but Allah knows best.
75These
are the traditions he cited without mentioning the chain of narrators (isnaad). (Translators Note) 76That is, Abu Daawood, at-Tirmidhee, an-Nasaaee and Ibn Maajah. (Translators Note) 77See at-Taareekh al-Kabeer, 6/51; al-jarh Wat-tadeel, 6/10; Ibn Hibbaan, ath-Thiqaat, 7/122; Tahdheeb al-Kamaal, 16/416; al-Kaashif, 1/614; Tahdheeb at-Tahdheeb, 6/101; and Taqreeb atTahdheeb, p. 333.
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Part Two: Takhreej78and Study of Traditions on Custody that are classified as Mawqoof79
First Hadeeth Imaam Maalik reported in al-Muwatta80: Yahyaa ibn Saeed said that he heard al-Qaasim ibn Muhammad say, A woman from among the Helpers (al-Ansaar) was married to Umar ibn al-Khattaab, and she bore him Aasim ibn Umar. Then he divorced her. Umar came to Qubaa81 and found his son Asim playing in the courtyard of the mosque. He took him by the arm and placed him before him on his mount. The child's grandmother argued with Umar about the child, so they went to Abu Bakr as-Siddeeq. 'Umar said, [He is] my son! The woman said, [He is] my son! Abu Bakr said, Do not interfere between a child and its mother. Umar did not repeat his words. Takhreej (*) This hadeeth was reported by al-Bayhaqee, 8/5, from the route of Yahyaa ibn Bukayr from Maalik. (*) It was also reported by Abdur-Razzaaq, 7/155, no. 12602, and Saeed ibn Mansoor, 2/109, from Ibn Uyaynah, (=);Saeed ibn Mansoor, 2/109, from Hushaym (=); and Ibn Abu Shaybah, 4/180, no. 19124, from the route of Ibn Idrees (=). All three narrators narrated it from Yahyaa ibn Saeed with similar wording. Ibn Abu Shaybah said in his narration that the name of the woman [in the hadeeth] was Jameelah Bint Aasim ibn Thaabit ibn AbulAqlqah, and that the name of the grandmother was ash-Shamoos bint Abu Aamir al-Ansaariyyah.
78See
footnote no. 10. (Translators Note) to Ibn as-Salaah: "Mawqoof, refers to a narration attributed to a companion, whether a statement of that companion, an action or otherwise."e.g. al-Bukhaaree reports in his Saheeh in Kitaab al-Fara'idh (Book of the Law of Inheritance), that Abu Bakr, Ibn Abbaas and Ibn al-Zubayr said, "The grandfather is [treated like] a father.". (Translators Note) 80Al-Muwatta, 2/767, no. 1458. 81Qubaa is a small city just outside Madeenah. It used to be the quarters of the clan of Banu Amr ibn Awf and is very well-known for its mosque which was built by the Prophet (peace and blessings be upon him) upon his migration from Makkah to Madeenah. See Mujam Mastajam, 3/1045; Mujam al-Buldaan, 4/301; and al-Maaalim al-Mutheerah, p. 222.
79According
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Evaluation of the hadeeth The isnaad of this hadeeth has been described by hadeeth scholars as weak (dhaeef) due to the fact that it is munqati, for al-Qaasim ibn Muhammad ibn Abu Bakr did not witness the incident mentioned in the hadeeth, as his father was born in the year the Prophet (peace and blessings be upon him) performed the Farewell Pilgrimage82, as is wellknown.83 It does, however, get external corroboration, including the following: 1. Abur-Razaaqs report, 7/154, no. 12601, from the route of Ataa al-Khuraasaanee, from Ibn Abbaas, citing a similar story with the addition: Abu Bakr said to him (i.e. Umar ibn al-Khattaab), Her smell, lap and bed is better for him than you, unless he grows to such an age when he can choose who [is better] for him. This hadeeth is, however, munqati.84 Ahmad ibn Hanbal said, Ataa al-Khuraasaanee did not hear any traditions whatsoever from Ibn Abbaas.85 2. Ibn Abu Shaybahs report, 4/180, no. 19123, from the route of Qataadah, from Saeed ibn al-Musayyib who said, Umar ibn alKhattaab divorced Umm Aasim Its wording is similar to that narrated by Ibn Abbaas. This report is also weak (dhaeef)because Qataadah was known for practising tadlees86 and Ibn Hajar placed him in the third category of those narrators who practised tadlees,87 namely those who practised it a great deal, so some traditionists have accepted such hadiths from them that were reported with a clear mention of being heard directly.88 3. Abdur-Razzaaqs report, 7/154, no. 12600; Ibn Abu Shaybah, 4/179, no. 19114; and Saeed ibn Mansoor, 2/109, from the route of Ikrimah who said, A woman brought suit against Umar before Abu Bakr (may Allah be pleased with both of them) The narration of
82The
Prophet (peace and blessings be upon him) performed this pilgrimage in 10 AH (632 CE). (Translators Note) 83See al-Isteeaab, 1/425; Usd al-Ghaabah, 1/988; and al-Isaabah fee Tamyeez as-Sahaabah, 6/245. 84See footnote no. 58. (Translators Note) 85Jaami at-Tahseel, 1/238. 86See footnote no. 31. (Translator's Note) 87See footnote no. 31. (Translator's Note) 88Tabaqaat al-Mudalliseen, p. 43.
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Abdur-Razzaaq and Ibn Abu Shaybah has the addition: Abu Bakr said, She is more compassionate, more kind, more merciful, more loving and more gracious. Abdur-Razzaaq added, And she has more right to her child as long as she does not get married. The isnaad of this tradition is, however, classified as munqati, for Ikrimah did not witness the incident mentioned in the hadeeth. Abu Zarah said, the chain Ikrimah from Abu Bakr and Ali (may Allah be pleased with both of them) is considered mursal.89 4. Al-Bayhaqees report, 8/5, from the route of Mujaalid ibn Saeed ash-Shabee from Masrooq who said, Umar (may Allah be pleased with him) divorced Umm Aasim He narrated it with similar wording. It was also reported by Ibn Abu Shaybah, 4/180, no. 19122, and Saeed ibn Mansoor, 2/109 from the route of Mujaalid from ash-Shabee, but he did not mention Masrooq. Mujaalid, however, is known to be weak (dhaeef), and Ibn Hajar said about him, He is not strong [in transmitting hadeeth], and his memory became weak in his old age.90 This story was also related from al-Hasan and Ataa, as has been reported by Saeed ibn Mansoor, 2/110. It was also related from azZuhree, as has been reported by Abdur-Razzaaq, 7/153, no. 12598; and from Zayd ibn Ishaaq ibn Jaariyah and Abu az-Zinaad from the jurists in Madeenah who narrated it from them, as has been reported by alBayhaqee, 8/5; and all these narrations have been categorized by hadeeth scholars as munqati.91 All these narrations indicate that the story mentioned in the hadeeth is well-known and well-preserved in books. It is, therefore, authentic, but Allah knows best. Second Hadeeth Abdur-Razzaaq92 said: Mamar narrated from Ayyoob, from Ismaaeel ibn Ubaydullaah, from Abdur-Rahmaan ibn Ghanm who said, A dispute [between a man and a woman] over a child was brought before Umar, and he said, He shall stay with his mother until
89Jaami
at-Tahseel, 1/239. at-Tahdheeb, p. 520. 91See footnote no. 58. (Translators Note) 92Musannaf Abdur-Razzaaq, 7/156, no. 12606.
90Taqreeb
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such an age when he can express himself and choose [whomever he wants to stay with]. Takhreej I have not come across any narration with this wording except that reported by Abdur-Razzaaq. Evaluation of the Hadeeth This hadeethwas reported by Ismaaeel from Ubaydullaah from Abdur-Rahmaan ibn Ghanm. The full name of Ismaaeel is Ismaaeel ibn Ubaydullaah ibn al-Muhaajir al-Makhzoomee ad-Dimashqee whose honorary title (kunyah) was Abu Abdul-Hameed. He narrated traditions from as-Saaib ibn Yazeed and Umm ad-Dardaa. Those who narrated traditions from him include al-Awzaaee and Saeed ibn Abd al-Azeez. anda group of other narrators. Al-Bukhaaree, Muslim, Abu Daawood, an-Nasaaee and Ibn Maajah have also reported narrations in their books on his authority. Ibn Hajar said about him, He is trustworthy. He belongs to the fourth generation of hadeeth narrators and died in 131 AH at the age of seventy.93 Abdur-Rahmaan ibn Ghanm al-Asharee narrated traditions from Umar ibn al-Khattaab and Muaadh ibn Jabal, and those who narrated traditions from him include Rajaa ibn Haywah. Al-Bukhaaree reported some narrations on his authority in his Taaaleeq94, and so did the Four Hadeeth Collectors. Adh-Dhahabee said about him, It has been asserted that he was one of the Prophets companions. He was one of the leading jurists in Syria. Ibn Hajar said, [Hadeeth scholars] are not agreed as to whether or not he was one of the Prophets companions. Al-Ajlee mentioned that he
93Taqreeb
at-Tahdheeb, p. 109. See also at-Taareekh al-Kabeer, 1/366; Tahdheeb al-Kamaal, 3/151; and al-Kaashif, 1/248. 94 These are the traditions which he cited without mentioning the chain of narrators (isnaad). (Translators Note)
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was one of the leading trustworthy narrators amongst the Taabioon.95He died in 78 AH.96 The isnaad of this hadeeth is, therefore, authentic (saheeh), but Allah knows best. It does, however, have external corroboration, namely AbdurRazzaaqs report, 7/156, no. 12607, from Mamar who said, Someone who heard the hadeeth from Abdullaah ibn Ubaydullaahinformed me that he heard him say, Umar ruled during his caliphate that [the child] should stay with his mother until such age when he could choose [to stay with whoever parent he wished. However, the isnaad of this report has been classified as munqati (broken). This tradition has also been narrated from Abdur-Rahmaan ibn Ghanm as follows: Saeed ibn Mansoor, 2/110, Ibn Abu Shaybah, 4/179, no. 19115, and ash-Shaafiee in his old views (as has been reported in alBayhaqees as-Sunan al-Kubraa, 8/4), from Yazeed ibn Yazeed ibn Jaabir, from Ismaaeel ibn Ubaydullaah, from Abdur-Rahmaan ibn Ghanm who said, Umar (may Allah be pleased with him) gave a child the choice to choose to stay with either his father or mother. The hadeeth with this wording is also authentic (saheeh), for it was narrated from Ismaaeel ibn Ubaydullaah by Yazeed ibn Yazeed ibn Jaabir al-Azdee ad-Dimashqee, about whom Ibn Hajar said, He is a trustworthy jurist whobelongs to the sixth generation of hadeeth narrators. He diedin 134 AH. Some [biographers] contend that de died before this year. Muslim, Abu Daawood, at-Tirmidhee and Ibn Maajah have reported traditions on his authority.97 It also gets further external corroboration from Abdur-Razzaaqs report, 7/156, no. 12605, from ibn Jurayj who heard Abdullaah ibn
95The
Taabioon (the Followers) are the generation of Muslims who were born after the death of the Prophet (peace and blessings be upon him) but who were contemporaries of the Sahaabah (Companions). As such, they played an important part in the development of Islamic thought and in the political development of the early Caliphate. (Translators Note) 96Taqreeb at-Tahdheeb, p. 348; and al-Kaashif, 1/640. See also at-Tabaqaat al-Kubraa, 7/441; atTaareekh al-Kabeer, 5/247; al-Ajlee, athh-Thiqaat, 2/84; Tahdheeb al-Kamaal, 17/340; al-Isaabah Fee Tamyeez as-Sahaabah, 4/350; and Tahdheeb at-Tahdheeb, 6/225. 97Taqreeb at-Tahdheeb, p. 606.
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Ubayd ibn Umayr98 say, A father and a mother quarrelled [over the custody of a child of theirs] and brought their case before Umar ibn alKhattaab who gave him (i.e. the child) the choice to choose to stay [with his father or mother], and he chose his mother who then took him away. The difference in wording may be attributed to the fact that Umar (may Allah be pleased with him) dealt with two different cases: In the first case, he did not give the child the option to choose whomever of his parents he wished to stay with but rather ruled that he should stay with his mother. In the second case, the child was able to choose for himself, and so he gave him this option. Allah knows best. Third Hadeeth Abdur-Razzaaq99 said: Ath-Thawree narrated from Yoonus ibn Ubaydullaah al-Jarmee, from Umaarah ibn Rabeeah al-Jarmee who said, My mother quarrelled with my paternal uncle who lived in Basra [over my custody] and brought the case before Ali [ibn Abee Taalib]. My uncle and my mother went [to his court] and called him. He came and they told him their case. [Ali] said [to me], Would you like to stay with your mother or your uncle? I replied, I would rather stay with my mother. I said this three times, for people liked to confirm something by saying it three times. He then said to me, You will [now] stay with your mother, and when this brother of yours becomes old enough like you are, he will also be given the option [to stay with whomever he wishes] just as you have been given such an option. I was a young boy then. Takhreej (*) This hadeeth was reported by ash-Shaafiee, p. 288, Saeed ibn Mansoor, 2/111, and al-Bayhaqee, 8/4, from Ibn Uyaynah (=). (*) It was also reported by ash-Shaafiee, p. 288, from Ibraaheem ibn Abu Yahyaa (=) and by Ibn Abu Shaybah, 4/180, no. 19127, from Abbaad ibn al-Awwaam (=). All three narrators narrated it from Yoonus ibn Abdullaah al-Jarmee with similar wording. Ash-Shaafiee did not mention Ibn Abu Yahyaas
98Abdur-Razzaaq
mentions in his Musannaf , 7/156, that his name was Abdullaah ibn Abdullaah, but I have confirmed his name here from Nasb ar-Raayah, 3/269. 99Musannaf Abdur-Razzaaq, 7/156, no. 12609.
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wording. However, he said that he narrated something similar to it and said that his narration included the words: I was seven or eight years old then. Evaluation of the Hadeeth This hadeeth was reported on the authority of Yoonus ibn Ubaydullaah al-Jarmee from Umaarah ibn Rabeea al-Jarmee. About Yoonus ibn Ubaydullaah al-Jarmee, Yahyaa ibn Maeen said, He is a trustworthy [hadeeth narrator] from Koofah. Ibn Hibbaan mentioned him in his book of reliable narrators Ath-Thiqaat.100 Therefore, he is a reliable narrator. As for Umaarah ibn Rabeea al-Jarmee, this was mentioned by alBukhaaree, Ibn Abu Haatim and Ibn Sad in their books, but they did not evaluate his position as a narrator. They also mentioned that he narrated traditions from Ali ibn Abee Taalib and that Yoonus ibn Abdullaah al-jarmee narrated traditions from him. He was also mentioned by Ibn Hibbaan in his book of reliable narrators in his book Ath-Thiqaat. Therefore, this narrator has not been criticised by hadeeth scholars. Hebelongs to the generation of at-Taabioon, who came after that of the Prophets companions and learnt from them. His narration is thus reliable, for this incident occurred to him personally.101 Based on the foregoing discussion, the hadeeth is therefore good (hasan), but Allah knows best. As for the addition supplied by Ibraaheem ibn Abu Yahyaa in his narration, it is to be rejected, for Ibraaheem has been categorised by hadeeth scholars as very weak (dhaeef jiddaan). Ibn Hajar said about him, Ibraaheem ibn Muhammad ibn Abu Yahyaa al-Aslamee, with the honorary title of Abu Ishaaq al-Madanee, is rejected (matrook). He belongs to the seventh generation of hadeethnarrators. He died in 184 AH. Some argue that he died in 191 AH. Ibn Maajah reported traditions on his authority in his book.102
100See
at-Taareekh al-Kabeer, 8/406; al-Jarh Wat-Tadeel, 9/241; Ibn Hibbaan, ath-Thiqaat, 7/649; and Tajeel al-Manfaah, 1/461. 101See at-Taareekh al-Kabeer, 8/497; al-Jarh Wat-Tadeel, 6/365; Ibn Hibbaan, ath-Thiqaat, 5/241; and Tajeel al-Manfaah, 1/295. 102Taqreeb at-Tahdheeb, p. 93.
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Section Two: Juristic Rulings relating to the Traditions onCustody

This section consists of three parts.
Part One: Persons Entitled to Take Custody of Minors and their Order
Because minors are unable to take care of themselves and tend to their needs by themselves, Islam has granted those caring people the right to look after them. This right is given to women sometimes but to men at other times. It is principally womens right, as they are more affectionate and loving and better equipped than men to bring children up due to their tendency to stay at home. Then it is awarded to men who are better than women at protecting them and securing their rights. Islam awards custody principally to women because they are known to benefit the child more than men would.103 Custody is this given to the parents if they are still married. However, if the husband divorces his wife, the mother becomes more entitled to the childs custody if she meets the necessary conditions, as will be made clear later. This ruling has been generally agreed upon by all Muslim jurists104 who have furnished the following evidence: 1. The narration reported on the authority of Amr ibn al-Aas from the Prophet (peace and blessings be upon him) who said, You have more right to him as long as you do not get married.105 2. The narration reported on the authority of Ikrimah that Abu Bakr (may Allah be pleased with him) said to Umar ibn al-Khattaab (may Allah be pleased with him), She is more compassionate, more kind, more merciful, more loving and more gracious.106
103See
al-Mabsoot, 5/207; Badaai as-Sanaai, 4/41; Mughnee al-Muhtaaj, 3/453; Kifaayat alAkhyaar, p. 549; and Ibn Qudaamah, al-Kaafee, 3/244. 104Ibn al-Mundhir, al-Ijmaa, p. 79. See also Haashiyat Ibn Aabideen, 2/638; al-Istidhlkaar, 7/292; al-Muhadh-dhab, 2/169; and al-Mughnee, 9/307. 105The takhreej of this hadeeth has already been mentioned. 106Ibid.
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3. Umar ibn al-Khattaabs statement, He shall stay with his mother until such an age when he can express himself and choose [whomever he wants to stay with].107 If, however, the mother is not available for some reason or if she cannot possibly have custody of the child for failing to meet the conditions of doing so, then custody may be awarded to the mothers mother and then to the grandmother; after her comes the maternal aunt. But if there are more of the mother's maternal relations the right shall pass into the hands of sisters and paternal aunts. And if there are none of these, the right passes into the hands of agnates. This view has been held by the four leading jurists108 who have furnished the following evidence: 1. Abu Bakr ruled in the case of Umar that the childs custody was to be awarded to the mothers mother. 2. The mothers mother and all her maternal relations (grandmother; after her comes the maternal aunt. But if there are more of the mother's maternal relations, the sisters and paternal aunts. And if there are none of these, the agnates)share birth and inheritance with the mother. 3. The mothers mother and all her maternal relations (grandmother; after her comes the maternal aunt. But if there are more of the mother's maternal relations, the sisters and paternal aunts. And if there are none of these, the agnates) have more right to inheritance than the maternal relations of the father, as they do not lose their right to inheritance in case the father is not alive, while the fathers mother and his maternal relations lose such a right in case the mother is not alive.109 4. The mothers mother inherits through the mother who is given precedence over the father. Therefore, giving precedence to her over the fathers mother is similar to giving precedence to the mother over the father.110
107Ibid. 108See
Haashiyat Ibn Aabideen, 2/638; al-Istidhlkaar, 7/292; Haashiyat ad-Dasooqee, 2/527; alMuhadh-dhab, 2/169; Mughnee al-Muhtaaj, 3/453; al-Insaaf, 9/307;and al-Mughnee, 9/307. 109Al-Muhadh-dhab, 2/169; and Mughnee al-Muhtaaj, 3/453. 110Al-Mughnee, 9/307; and Mughnee al-Muhtaaj, 3/453.
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5. The father does not undertake custody by himself. Rather, he gives this duty to his wife. Therefore, the mother of the child under guardianship has more right to him than does his stepmother.111 If the maternal relations of the mother are not available, Muslim jurists have expressed different opinions as to who is more entitled to such a right after them. Each one of them has stipulated a certain order in having custody of the child after the mother and her maternal relations as well as those to be given precedence in case they are equal. It is worth noting that custody is not transferred to a person entitled to it unless they waive their right to it or they lose such entitlement for a legal reason. I will here discuss Muslim jurists opinions as to those entitled to custody after the mothers maternal relations. I will not, however, discuss the order of such persons as this takes a long time to discuss. Besides, I have not come across any evidence from the Quran or the Sunnah in support of these opinions in this respect. Muslim jurists have expressed four different opinions regarding those entitled to the custody of children after the mothers maternal relations. First Opinion: Custody is the right of the fathers mother. This is the view of the Hanafites as well as the new opinion of the Shaafiites. It is also one of the views held by the Hanbalites.112 Second Opinion: Sisters and maternal aunts are given precedence over the fathers mother. This is the old view of the Shaafiites.113 Third Opinion: The maternal aunt is given precedence over the fathers mother.114 Fourth Opinion: The father has the right to the custody of the child. This is the other view held by the Hanbalites.115
111Al-Mughnee, 112Al-Mabsoot,
9/299; and al-Iqnaa, 4/157. 5/210; fath al-Qadeer, 4/369; Haashiyat Ibn Aabideen, 2/638 al-Umm, 5/99; alMuhadh-dhab, 2/169; Kifaayat al-Akhyaar, p. 550; al-Mughnee, 9/307; al-Furoo, 5/614; and alInsaaf, 9/307. 113al-Muhadh-dhab, 2/169; Mughnee al-Muhtaaj, 3/453; and Futoohaatal-Wahhaab, 4/516. 114Al-Mudawwanah al-Kubraa, 5/356; at-Talqeen, 1/351; and Qawaaneen al-Ahkaam al-Fiqhiyyah, p. 225. 115Al-Furoo, 5/618; al-Iqnaa, 4/157; and al-Insaaf, 9/307.
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The Shaafiites(in their old opinion) and the Maalikites support their view with the hadeeth narrated on the authority of al-Baraa ibn Aazib, Ali ibn Abee Taalib. Abdullaah ibn Abbaas and others who said that the Prophet (peace and blessings be upon him) ruled that Hamzahs daughter should be given to her maternal aunt and said, The maternal aunt is like the mother.116 I have not come across any evidence from the Quran or the Sunnah in support of the other opinions. Allah knows best.
PartTwo: Termination of Custody and the Childs Option to Choose his Custodian
Prophetic traditions and leading scholars statements clearly indicate that the children, male or female, are to be given the option to choose to stay with either of their parents they wish when they reach the age of discernment. They include the following: 1. The tradition narrated on the authority of Abu Hurayrah (may Allah be pleased with him) who said that he gave a child the option to choose one of his parents to be his custodian and said that the Prophet (peace and blessings be upon him) had done the same thing.117 2. The tradition about the story of Raafi ibn Sinaan which mentions that the Prophet (peace and blessings be upon him) gave his daughter the option to choose him or her mother who was not Muslim as her custodian.118 3. The statement of Umar ibn al-Khattaab (may Allah be pleased with him), when a dispute [between a man and a woman] over a child was brought before him, He shall stay with his mother until such an age when he can express himself and choose [whomever he wants to stay with].119 4. The tradition narrated by Umaarah ibn rabeeah al-Jarmee that Ali ibn Abee Taalib (may Allah be pleased with him) gave him the
116The 117Ibid. 118Ibid. 119Ibid.
takhreej of this hadeeth has already been stated.
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option to choose his mother or paternal uncle as his custodian and said to him, You will [now] stay with your mother, and when this brother of yours becomes old enough like you are, he will also be given the option [to stay with whomever he wishes] just as you have been given such an option.120 The age of discernment has been specified by Umars statement: He shall stay with his mother until such an age when he can express himself and choose [whomever he wants to stay with]. The option given to the children to choose their custodian has been stated by the Shaafiites121 and the Hanbalites122. However, the Hanbalites have confined this option to the male child. As for the Hanafites and the Maalikites, they maintain that children are not to be given this option, but they are not generally agreed on this issue. The Hanafites argue that the male child stays with his mother until such an age when he becomes independent and can eat, drink and dress all by himself. They have estimated this age to be seven. They further argue that after this age the child, male or female, is not given the option to choose his custodian. Rather, his custody is transferred to the father, for the child at this age is not capable enough of making the right decision. They also maintain that custody of the female child is awarded to the mother until she attains puberty or gets married if the custodian is the mother herself or any of her female relations (grandmother; after her comes the maternal aunt. But if there are more of the mother's maternal relations, the sisters and paternal aunts.And if there are none of these, the agnates). However, if the custodian is not the mother or the mothers mother , then the mothers maternal relations are entitled to her custody until such an age when she develops feminine characteristics appealing to men, which is estimated to be at the age of nine. Then custody of the child is transferred to the father. The Maalikites123hold that the male child remains in the custody of his mother until he reaches puberty. Some Maalikite jurists maintain that he
120Ibid. 121Al-Umm,
5/99; at-Tanbeeh, p. 219; and Rawdhat at-Taalibeen, 6/511. 9/301; Kash-shaaf al-Qinaa, 5/501; and al-Insaaf, 9/317. 123Al-Istidhkaar, 7/292 at-Talqeen, 1/351; and Haashiyat ad-Dasooqee, 2/526.
122Al-Mughnee,
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stays in her custody until his milk teeth fall out. As for the female child, they further argue, she stays in the custody of her mother until she gets married. Ibn Rushd said, Two opinions have been expressed as to the case when the male child reaches the age of discernment. One group of scholars maintain that he is given the option to choose his custodian, while another group have adhered to the original opinion, for, according to them, the hadeeth on this issue is not authentic.124 As for the Hanbalites jurists, they do not hold that the female child is to be given such an option. This may be attributed to the fact that they have not heard of the tradition narrated on the authority of Raafi ibn Sinaan, one of its versions states that the Prophet (peace and blessings be upon him) gave his daughter the option to choose her custodian. Al-Haafidh Ibn Hajar writes, Ibn al-Jawzee said, The narration of those who state that the child was male is more authentic. Ibn alQattaan also said, If the narration which states that the child was female were authentic, then there would probably be two different cases due to the multiplicity of narrators.125
PartThree: Conditions that the Custodian Must Meet

The sole purpose behind custody is to take care of the person under guardianship and tend to their needs. This may only be possible if the custodian is qualified enough for the task.It is for this reason that Muslim jurists have stipulated some conditions which, if the prospective custodians do not meet, they will not be entitled to have custody of children. A look at the traditions discussed here will reveal that they all point to one condition relating to the mother, namely that she does not get married again, and that if she does, she will no longer have the right to custody, as she will be occupied with fulfilling the rights of the new husband. The following traditions provide evidence for this.
124Bidaayat
125At-Talkhees
al-Mujtahid, 2/46. al-Habeer, 4/487.See also al-Majmoo Sharh al-Muhadh-dhab, 18/322; and Ibn atTurkumaanee, al-jawhar an-naqiyy, 8/4.
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1. The tradition narrated on the authority of Abdullaah ibn Amr in which the Messenger of Allah (peace and blessings be upon him) said to a woman, You have more right to him as long as you do not get married.126 2. The tradition narrated on the authority of Ikrimah in which Abu Bakr (may Allah be pleased with him) said, regarding the case of the woman who brought suit against Umar,She is more compassionate, more kind, more merciful, more loving and more gracious, and she has more right to her child as long as she does not get married.127 Ibn al-Mundhir said, [Scholars] are unanimously agreed that the mother has no right whatsoever to the custody of her child if she gets married.128 One of the conditions regarding which Muslim jurists are not agreed is whether or not the custodian must be Muslim if the child under guardianship is Muslim. The narration of Raafi ibn Sinaan mentioned earlier on states that the Prophet (peace and blessings be upon him) said to Raafi, Sit down on one side. He also said to her, Sit down on one side. He then seated the girl between them and said to them, Call her. The girl inclined to her mother. The Prophet (peace and blessings be upon him) said, O Allah, guide her. The daughter then inclined to her father, and he took her.129 In fact, Muslim jurists have expressed two views regarding this condition: First Opinion: The custodian does not necessarily have to be Muslim. This is the view of the Hanafites and the Maalikites and one of the opinions held by the Shaafiites.130 Second Opinion: The custodian has to be Muslim. This is the view of the Shaafiites and the Hanbalites.131
126Sunan 127The
Abu Daawood, 1/693, hadeeth no. 2276. It has been categorised as good (hasan). takhreej of this hadeeth has already been stated. 128Ibn al-Mundhir, al-Ijmaa, p. 79. See also al-Mabsoot, 5/207; Badaai as-Sanaai, 4/41; Talqeen, 1/351; Bidaayat al-Mujtahid, 2/46; al-Umm, 5/99; Mughnee al-Muhtaaj, 3/452; Mughnee, 9/307; and Ibn Qudaamah, al-Kaafeefee al-Fiqh, 3/381. 129The takhreej of this hadeeth has already been stated. 130Al-Mabsoot, 5/207; Badaai as-Sanaai, 4/42; fath al-Qadeer, 4/372; al-Muntaqaa Sharh Muwatta, 6/186; al-Kharshee, Sharh Mukhtasar Khaleel, 14/152; Minah al-Jaleel, 4/452; Muhadh-dhab, 2/169; Mughnee al-Muhtaaj, 3/454; and Kifaayat al-Akhyaar, p. 551.
atal-
alal-
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Proponents of the first opinion have advanced the tradition narrated on the authority of Raafi ibn Sinaan mentioned above. As for the proponents of the second opinion, they have relied on rational proofs including the following: 1. Custody has been particularly legislated in the best interests of children, and there is no way Muslim children can be looked after by a non-Muslim custodian, as he/she may pave the way for them to leave the fold of Islam by introducing him to non-Islamic teachings and bringing up upon such teachings. This constitutes a great deal of harm. 2. Custody is a form of guardianship, just like marriage and property guardianship, and it must by no means be awarded to a nonMuslim to look after Muslims. 3. Given that custody cannot be awarded to a faasiq,132 then, a fortiori, a non-Muslim cannot be granted such a right due to the greater harm that is bound to be done to the children under guardianship.133 In refutation of the argument citing the hadeeth in this respect, they have advanced the following arguments: a. This hadeeth is a weak (dhaeef).134 b. It may be that the Prophet (peace and blessings be upon him) knew that the female child mentioned in the hadeeth would choose to stay with her Muslim father as a result of invoking Allah to this effect, in which case this is particular to him alone.135 c. The hadeeth has been abrogated, for Muslim scholars are unanimously agreed that a Muslim child must in no way be given to a non-Muslim person to look after him.136 As for the other conditions Muslim jurists have stipulated in this respect, they have generally deducted them from evidence from the Quran and the Sunnah, as well as the unanimous agreement of Muslim
131Al-Muhadh-dhab,
2/169; Kifaayat al-Akhyaar, p. 551; Futoohaat al-Wahhaab, 4/520; al-Mughnee, 9/298; al-Furoo, 5/618; and Kash-shaaf al-Qinaa, 5/498. 132A faasiq issomeone who violates Islamic Law or someone guilty of openly and flagrantly violating Islamic law and/or someone whose moral character is corrupt. (Translators Note) 133See al-Mabsoot, 5/207; and al-Mughnee, 9/298. 134I have already mentioned that the isnaad of this hadeeth is good (hasan). 135Al-Mughnee, 9/298; and Mughnee al-Muhtaaj, 3/454. 136Al-Mabsoot, 5/207; and Mughnee al-Muhtaaj, 3/454.
56 Al-Adl (47)
scholars (ijmaa) and valid analogical reasoning (qiyaas). Differences arise only regarding some particular conditions.137 The rest of the conditions regarding custody fall into three categories: (1) general conditions relating to men and women, (2) conditions relating to women, and (3) conditions relating to men. As for the general conditions that relate to both men and women, these are as follows: 1. The guardian must be an adult and sane, in which case custody must not be awarded to a child or an insane person or someone who is mentally deficient, for these are not able to have custody of children and look after them. The Maalikites have, however, discussed the condition of being adult in great detail. 2. The guardian must be devout and upright, in which case a faasiq138has no right whatsoever to have custody of children, as he/she cannot be trusted. By faasiq is meant someone who is bound to neglect the rights of those under his/her guardianship. He may be notorious for drinking alcohol, theft, adultery and forbidden forms of entertainment, among other flagrant vices. As for the faasiq who does not involve committing major sins and is certain not to lead neglecting the rights of those under his/her guardianship, then he/she may entitled to such a right. 3. The guardian must be capable of looking after those under his/her guardianship, in which case old people and those with a disease that prevents them from properly looking after those under their guardianship are not allowed to undertake such a task. The guardian who goes out to work very often and thus neglects those under his/her guardianship is not allowed to undertake such a task either. They can only do so if they provide someone who can look after the children under guardianship and tend to their needs.
137These
conditions can be found in the following sources: Badaai as-Sanaai;, 4/41; al-Bahr arRaaiq, 4/180; haashiyat Ibn Aabideen, 2/638; al-Kharshee, Sharh Mukhtasar Khaleel, 14/152; alFawaakih ad-Dawaanee, 2/103; Haashiyat ad-Dasooqee, 2/526, al-Umm, 5/99; al-Maawardee, alHaawee al-Kabeer, 11/505; Rawdhat at-Taalibeen, 6/504; Mughnee al-Muhtaaj, 3/454; alMughnee, 9/298; Kash-shaaf al-Qinaa, 5/498; and Mataalib Oolee an-Nuhaa, 5/667. 138A faasiq issomeone who violates Islamic Law or someone guilty of openly and flagrantly violating Islamic law and/or someone whose moral character is corrupt. (Translators Note)
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4. The guardian must not be suffering from a contagious disease, which is bound to spread to the children under his/her guardianship. 5. The guardian must make sure that the residence for those under his/her guardianship must be safe and secure especially if they reach a certain age when their morals may be contaminated by bad behaviour or their property may be lost. In this way, those who live in insecure and safe places which are frequented by corrupt people have no right whatsoever to look after minors. As for the conditions which male guardians must meet, these include the fact that the male guardian must be a mahram139of those under his guardianship if the female under his guardianship has reached such an age when she may be sexually appealing to men. Therefore, a girl of this kind may not be looked after by her male cousin, for he is not a mahram of hers and he is allowed to marry her according to the Islamic Law. If, however, she is very young and is not sexually appealing to men, then he can be a legal guardian of her. If the female child is old enough to be sexually appealing to men and there is no other person to be her legal guardian apart from her male cousin, she is to placed in the custody of a trusted woman to look after her whom the cousin chooses, according to the Shaafiites and the Hanbalites. The Hanafites, however, maintain that the judge will look after her in this case. The Maalikites hold that men who are not mahram to the female child cannot serve as legal guardians. The Shaafiites have, however, considered it permissible for her male cousin to take her under his guardianship if he has a daughter and he would feel embarrassed to behave in an acceptable manner in front of her. There are only two conditions a female guardian must meet, namely:
139A
womans mahram is a person whom she is never permitted to marry because of their close blood relationship (such as her father, grandfather, great-grandfather, etc., and her son, grandson, great-grandson, etc., her paternal and maternal uncles, her brother, brothers son and sisters son), or because of radhaaah or breastfeeding (such as the brother and husband of the woman who breastfed her), or because they are related by marriage (such as the mothers husband, the husbands father, grandfather, etc., and the husbands son, grandson, etc.). (Translators Note)
58 Al-Adl (47)
a. She must not be married to a man who is not considered a mahram to the child under guardianship.This condition has been discussed at length above. b. She must be a mahram to the male child under her guardianship, such as being his mother or sister. In this case, female cousins on both the side of the mother and the father are not considered legal guardians of male children.
Conclusion
All praises and thanks are due to Allah for having bestowed so many blessings upon me, and of these countless blessings is the assistance He has given me to complete the present paper. In fact, I have spared no effort to collect all the Prophetic traditions on custody (hadhaanah) from the books of hadeeth and delineate some rulings on the issue. The following is a brief summary of the main points tackled in the paper: 1. There are only thirteen traditions on the issue of custody: ten are attributed to the Prophet (peace and blessings be upon him) (marfoo) and three are attributed to the Prophets companions (mawqoof). 2. By the term hadhaanah, or custody, is meant taking care of an infant, protecting them against any harm and attending to their needs and securing their interests. 3. Custody is obligatory, for failure to take custody of a helpless child will certainly make them vulnerable and subject to harm. In fact, protecting a child against harm is obligatory. 4. The person most entitled to having custody of the child is his mother as long as she does not get married. If she gets married, she is no longer entitled to such a right. After the mother custody may be awarded to the mothers mother and then to the grandmother; after her comes the maternal aunt. But if there are more of the mother's maternal relations the right shall pass into the hands of sisters and paternal aunts. And if there are none of these, the right passes into the hands of agnates. This view has been held by the four leading jurists. After these, scholars are not agreed as to who should have custody of the child. The majority of scholars, however, opine that the person who deserves to be the legal guardian of the child after that is the fathers mother and then her maternal relations.
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5. If the child, male or female, reached the age of discernment and he is sane, he can be given the option to choose to stay with his father or mother as he/she wishes, and whoever he/she chooses can take him/her. 6. Because custody is a form of guardianship, just like marriage and property guardianship, and the purpose behind it is to protect the persons under guardianship and look after them, which can only be realized if the guardian is qualified for the task, Muslim jurists have stipulated certain conditions which the prospective guardian must meet in order to be considered qualified for this duty. These conditions fall into three categories: (1) general conditions relating to men and women, (2) conditions relating to women and (3) conditions relating to men. Finally, I pray to Almighty Allah to accept my endeavour and to guide my steps and forgive my sins and those of my parents, teachers and all Muslims. I also pray to Him to shower His peace and blessings upon our Prophet Muhammad as well as upon his pure family and noble companions.
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A Refereed Study

Dr. Sulaimaan bin Abdullah Al-Qusayyir*

Custody in the Light of the Sunnah of the Prophet

Dr. Sulaimaan bin Abdullah Al-Qusayyir

Custody in the Light of the Sunnah of the Prophet

Dr. Sulaimaan bin Abdullah Al-Qusayyir

Part Two: Islamic Ruling on Hadhaanah

Custody in the Light of the Sunnah of the Prophet

Part Three: Why Custody

Section One: Takhreej10and Study of Traditions on Custody

Part One:Takhreej11and Study of Traditions on Custody that are classified as Marfoo12

Dr. Sulaimaan bin Abdullah Al-Qusayyir

Custody in the Light of the Sunnah of the Prophet

Abu Daawood, 1/694, no. 2280.

Dr. Sulaimaan bin Abdullah Al-Qusayyir

Custody in the Light of the Sunnah of the Prophet

Dr. Sulaimaan bin Abdullah Al-Qusayyir

Custody in the Light of the Sunnah of the Prophet

Dr. Sulaimaan bin Abdullah Al-Qusayyir

Custody in the Light of the Sunnah of the Prophet

Dr. Sulaimaan bin Abdullah Al-Qusayyir

Custody in the Light of the Sunnah of the Prophet

Dr. Sulaimaan bin Abdullah Al-Qusayyir

Custody in the Light of the Sunnah of the Prophet

Dr. Sulaimaan bin Abdullah Al-Qusayyir

Custody in the Light of the Sunnah of the Prophet

Dr. Sulaimaan bin Abdullah Al-Qusayyir

Custody in the Light of the Sunnah of the Prophet

Dr. Sulaimaan bin Abdullah Al-Qusayyir

Custody in the Light of the Sunnah of the Prophet

Dr. Sulaimaan bin Abdullah Al-Qusayyir

Custody in the Light of the Sunnah of the Prophet

Dr. Sulaimaan bin Abdullah Al-Qusayyir

Abu Daawood, 1/681, no. 2244.

Custody in the Light of the Sunnah of the Prophet

Dr. Sulaimaan bin Abdullah Al-Qusayyir

Custody in the Light of the Sunnah of the Prophet

Dr. Sulaimaan bin Abdullah Al-Qusayyir

Custody in the Light of the Sunnah of the Prophet

Dr. Sulaimaan bin Abdullah Al-Qusayyir

Custody in the Light of the Sunnah of the Prophet

Dr. Sulaimaan bin Abdullah Al-Qusayyir

Custody in the Light of the Sunnah of the Prophet

Dr. Sulaimaan bin Abdullah Al-Qusayyir

Custody in the Light of the Sunnah of the Prophet

Dr. Sulaimaan bin Abdullah Al-Qusayyir

Section Two: Juristic Rulings relating to the Traditions onCustody

Custody in the Light of the Sunnah of the Prophet

Dr. Sulaimaan bin Abdullah Al-Qusayyir

Custody in the Light of the Sunnah of the Prophet

116The 117Ibid. 118Ibid. 119Ibid.

takhreej of this hadeeth has already been stated.

Dr. Sulaimaan bin Abdullah Al-Qusayyir

Custody in the Light of the Sunnah of the Prophet

PartThree: Conditions that the Custodian Must Meet

Dr. Sulaimaan bin Abdullah Al-Qusayyir

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Dr. Sulaimaan bin Abdullah Al-Qusayyir

Custody in the Light of the Sunnah of the Prophet

Dr. Sulaimaan bin Abdullah Al-Qusayyir

Custody in the Light of the Sunnah of the Prophet

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