Re: how is divorce law fair in islam
Who the child belongs ... from Quran: (In reply to brother Diwana and nadz123):
As far as I know, in all Islamic ‘shariah’, child belongs to father [he is guardian and after him his heir (child’s grandfather or uncle) is guardian]. Anyhow, I am referring to Quran on the matter and giving reason why that is the case.
Child born within marriage (wife is still in wedlock of father ... as there is no divorce involved):
Ayah 2:233 And the mothers should suckle their children for two whole years for him (father) who desires to make complete the time of suckling; and their maintenance and their clothing must be-- borne by the father according to usage; no soul shall have imposed upon it a duty but to the extent of its capacity; neither shall a mother be made to suffer harm on account of her child, nor a father on account of his child, and a similar duty (devolves) on the (father's) heir, but if both desire weaning by mutual consent and counsel, there is no blame on them, and if you wish to engage a wet-nurse for your children, there is no blame on you so long as you pay what you promised for according to usage; and be careful of (your duty to) Allah and know that Allah sees what you do.
As can be seen, since child belongs to father, it is his decision that who suckle the child. If father wants to, mother can suckle the child for two years. Father is required to bear the cost of mother while giving suckle (whatever she asks for suckle and father agrees). Anyhow, if father decides he can give child to foster-mother, though he should pay whatever agreed for giving suckle to child (there is some controversy about payment to mother for giving suckle to the child ... though I feel Ayah is clear).
Another thing to note in ayah is mentioning of people (father’s heir) who inherits the child (guardianship) if father dies (they would be grandfather or uncle of child), as, when they becomes guardian of child they should treat the mother of child in same way, and should give her preference over foster mother.
It is right of mother in Islam that she should give suckle for first two years and for that she can charge ‘father or legal guardian of child (hair of child’s father after his death)’. In such situation, mother should be given first option and should be paid reasonably for suckling. That means, if guardian of child are rich or can afford, and if mother is asking that she wants to suckle the child at reasonably cost, than she should not be deprived even if she is asking more than foster-mother].
Note: According to Hanafi mazahab, if mother is married to the father then there is no need for father to pay mother anything for suckling. Father only need to pay mother he divorced ... as mentioned in ayah 65:6. Anyhow, it is clear from ayah 2:233 that there is payment involved related to suckling (as the ayah is regarding suckling of a child), else normal food and clothing is right of wife anyhow, and there should have been no need to mention that, as mother of child in ayah is married to father of child. At the end of ayah 2:233 there is mention of payment (you pay what you promise), that some believe is payment to mother what father may have agreed with her for giving suckle to child before deciding to give the child to foster-mother, but then, that payment could be to foster mother, though it may not be such as one would have to pay foster mother on continuous basis, so there is little chance of not paying what one promised, and even if anybody do that (not pay what one has promised) then foster mother would just return the child.
If there is divorce between father and mother of child ... and child is born:
Ayah 65:6 Let the women live (in 'iddat) in the same style as ye live, according to your means: Annoy them not, so as to restrict them. And if they carry (life in their wombs), then spend (your substance) on them until they deliver their burden: and if they suckle your (offspring), give them their recompense: and take mutual counsel together, according to what is just and reasonable. And if ye find yourselves in difficulties, let another woman suckle (the child) on the (father's) behalf.
Above ayah is clear. That is, if a divorced woman who bore the child suckles the child of her and her ex-husband (father of child), then father should pay her just and reasonable. Though if she (mother of child) is asking too much that could put father in difficulty then he (father) can ask another woman (foster-mother) to suckle his child.
All above shows that child belongs to father and that is why mother can charge father of the child for suckling. Even if father dies, child (guardianship of child) belongs to ‘heir of child’s father’ (grandfather or uncle of child) as mentioned in ayah 2:233.