IF one non-Muslim parent accepts Islam, to whom is the child of the marriage given?

A hadith in Imam Abu Dawud’s compilation of ahadith (sing. hadith), Sunan Abu Dawud, alludes to whom the child may be given to.

By the way, Sunan Abu Dawud is a collection of ahadith compiled by Imam Abu Dawud Sulayman ibn al-Ash’ath as-Sijistani. It is widely considered to be among the six canonical collections of ahadith (Kutub as-Sittah) of the sunnah of the Prophet Muhammad (pbuh). It consists of 5274 ahadith in 43 books.

The hadith, which is in the Book of Divorce, Hadith No.2244, under chapter 25/26 “If One of The Parents Accepts Islam, Who is the Child Given to?”, is as follows:

Abu Dawud said that Ibrahim bin Musa Ar-Razi informed him, that Isa reported to him, that Abdul Hamid bin Ja’far reported from his father on the authority of his grandfather Rafi’ bin Sinan, that he (Rafi’ bin Sinan) accepted Islam, but his wife refused to do so.

So she went to the prophet (pbuh) and said: “She is my daughter, and she is weaned, or almost weaned.”

And Rafi’ said: “She is my daughter.”

So the prophet (pbuh) told him, “sit on this side” and told her, “sit on that side,” and then placed the girl between them.

He then said to both of them. “Call her.”

The girl went towards her mother, but the prophet said: “O Allah! Guide her.” So she went to her father, and he took her.

Hadith No.2244 can be found here.

The short commentary to the hadith reads as follows:

In [the above] case, the couple are separated. The child, provided he is of sound judgment, shall be given the right to choose any of the two. As for the child lacking such ability, scholars have different opinions. For example, a male child will remain in custody of his mother for seven years and a female child for nine years. Later, they will be handed over to the father.

One can quickly identify the situation in the hadith above. The parents of a child (the claimants) were claiming custody over the child before an authority of the state. The authority was the prophet (pbuh), who was hearing the opposing claims as a judge.

Before the judge, the first claimant – the mother (the petitioner if you like) – sat on one side, and the second claimant – the father (the respondent if you like) – sat on the other side. The child sat between the two claimants.

It was a court sitting in a court proceeding. All parties were heard before the decision was made.

It was a judicial decision after hearing all parties.

It was justice in Islam – dispensed more than 1,440 years ago. – February 18, 2022.

Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.