بَابُ بُلُوغِ الصَّغِيرِ وَحِضَانَتِهِ فِي الصَّغْرِThe Maturity of the Child and Their Custody in Childhood

² The statement: “There is no orphanhood after wet dreams” clarifies the limit of a child’s maturity. In detail, a boy reaches maturity through one of three things: wet dreams, impregnation, or ejaculation, as these are signs of puberty, and this is by consensus. As for wet dreams, it is due to his (ﷺ) saying: “There is no orphanhood after wet dreams.” As for ejaculation, it is the primary sign by any cause, because wet dreams are only considered with it, and impregnation cannot occur without it. If none of these signs are present, his maturity is deferred until he completes eighteen years. A girl reaches maturity through one of three things: menstruation, wet dreams, or pregnancy. Menstruation is a sign because it typically occurs at the time of potential pregnancy, so it is considered a sign of puberty. Pregnancy is a sign because it indicates ejaculation, as a child is created from the water of the man and the woman. Ejaculation is not mentioned among the signs of a girl’s maturity because it is rarely known, unlike with a boy. If none of these signs are present, her maturity is deferred until she completes seventeen years, because a girl matures faster than a boy, so it is reduced by one year due to her temperament aligning with one of the four seasons. The ruling on maturity for both men and women is set at fifteen years, according to the two [Abu Hanifah and his students], the three [Malik, Shafi‘i, and Ahmad], and a narration from Abu Hanifah (may Allah be pleased with him), based on what was narrated from Ibn Umar (may Allah be pleased with him), who said: “I was presented to the Messenger of Allah (ﷺ) on the day of Uhud when I was fourteen years old, and he did not permit me. Then I was presented to him on the day of Khandaq when I was fifteen years old, and he permitted me.” It appears that the refusal was due to not having reached puberty, and the permission was due to reaching puberty, as it is the common and predominant case. The signs usually appear during this period, so the duration is taken as a sign for those who do not show the signs. The minimum age for puberty for a boy is twelve years, and for a girl, nine years, meaning the earliest time for a boy’s puberty, according to us, is the completion of twelve years, and for a girl, nine years, as they may exhibit signs of puberty at this age. If they claim puberty at this age, it is accepted, but not below that, as the apparent situation contradicts it. The specification of wet dreams and the like indicates that the growth of pubic hair is not considered, though Shafi‘i held this view, citing that the Prophet (ﷺ) ordered regarding the killing of Qurayzah to check: whoever had pubic hair was killed, and whoever did not was spared. The response is that he only ordered this there because there was no other way to determine their status, as they would not truthfully answer about their ages if asked, especially since the truth could lead to their killing, as the mature are killed and others spared. There was no way to know about their wet dreams except through their statements, so only the observation of pubic hair remained, which is a majority-based ruling, and knowledge was based on it, though it is not among the definitive proofs. Looking at it was permitted due to legal necessity. As for Ibn Umar’s case, puberty was not determined there except by age, because knowledge of puberty through wet dreams was only possible if he had a wife to be intimate with. If he had no wife or slave girl, it was not possible to ascertain through impregnation, and wet dreams during sleep are not necessarily present after puberty, as many people go years without them. Thus, only age remained the criterion, which is our position. Also, the beard is not considered, nor are the breasts’ prominence, as Al-Hamawi stated that it is not ruled by in the apparent narration. Similarly, a deep voice, as in the explanation of An-Nazm Al-Hamili by Abu As-Sa‘ud, and likewise hair on the legs, armpits, and mustache, as gathered from the commentaries of Al-Kanz, Ad-Durr Al-Mukhtar, Radd Al-Muhtar, and Al-Kawkab Ad-Durri.

¹ The statement: “You have more right to him as long as you do not remarry”: Know that custody is the right of the child due to their need for someone to care for them. Sometimes they need someone to tend to their physical well-being in custody, and sometimes someone to manage their wealth to prevent harm. Each is assigned to the one most capable and knowledgeable. Guardianship over wealth is given to the father or grandfather because they are more knowledgeable and capable in trade than women. The right of custody is given to women because they are more knowledgeable and capable in caring for children than men, due to their greater compassion and constant presence at home, as stated in Bahr Ar-Ra’iq. They agreed that the right of custody belongs to the mother, whether divorced or not, as long as she does not marry another man, unless she is an apostate or immoral. The basis for this is this hadith. If the child has no mother, because she is deceased, unfit for custody, unwilling to take the child, her right has lapsed, or she has married a non-relative, then the maternal grandmother is more entitled than the paternal grandmother, even if distant, because this guardianship is derived through mothers due to their abundant compassion. One connected through a mother is more entitled than one connected through a father. If there is no maternal grandmother, the paternal grandmother is more entitled than sisters, because she is among the mothers, and thus inherits a sixth, and she has greater compassion for the children, so she is prioritized over sisters and maternal aunts. As for the statement in Abu Dawud’s hadith: “The maternal aunt is a mother,” this is a metaphor that may refer to establishing custody or something else, but the context suggests the former. It remains general, whether in establishing the principle of custody or her being more entitled to the child than anyone else, but there is no evidence for the latter. The former is certain and established, so it does not indicate that she is specifically more entitled than anyone with a right to custody. Thus, the meaning we intended remains without opposition: the grandmother is a mother. If there is no grandmother, sisters are more entitled than paternal aunts and maternal aunts because they are daughters of both parents, and thus prioritized in inheritance. In a narration, the maternal aunt is more entitled than the paternal sister due to his (ﷺ) saying: “The maternal aunt is a mother.” The sister from both parents is prioritized over the sister from the father because one with two connections outweighs one with a single connection due to greater compassion. Then comes the sister from the mother, then the sister from the father, because their right is through the mother. According to Shafi‘i in his later opinion and Ahmad, the paternal sister is more entitled than the maternal sister and the maternal aunt. After sisters, the right goes to the daughter of the sister from both parents, then the daughter of the maternal sister, then the maternal aunt, and the daughter of the paternal sister is deferred after the maternal aunt according to the correct view. Then the right goes to the daughters of the brother from both parents, then from the mother, then from the father. After that, the right goes to paternal aunts, then the maternal grandmother’s maternal aunt, then the paternal grandmother’s maternal aunt, then the grandmothers’ and grandfathers’ aunts. If the child has no woman eligible for custody, and men dispute over him, the most entitled to custody are the agnates in the order of inheritance, prioritizing the closest, then the next closest: the father, then the grandfather, then the full brother, then the paternal brother, then their sons in the same order, then the paternal uncle, then his sons. If they are equal, the most pious is prioritized, then the eldest. However, a young girl is not given to a non-mahram relative like a cousin, nor to a mother unfit for custody, such as one who has apostatized or is immoral in a way that harms the child, like fornication, singing, theft, or wailing, or is untrustworthy by frequently going out and leaving the child, or is a slave woman, nor to an immoral agnate to avoid temptation, unlike a boy. If the child has no agnate, he is given to relatives through the mother according to Abu Hanifah, because they have the authority to arrange marriage in his view, so too with custody. This is gathered from the commentaries of Al-Kanz, Al-Hidayah, Al-Inayah, Fath Al-Qadir, and Umdat Ar-Ri‘ayah.

² The statement: “As long as you do not remarry”: Any woman among those entitled to custody who marries a non-mahram of the child loses her right to custody due to his (ﷺ) saying: “You have more right to him as long as you do not remarry.” It is specified to a non-mahram because of the lack of compassion, as he spends little on the child and looks at him with resentment, unlike if the husband is a mahram relative of the child, such as the grandmother whose husband is the grandfather, or the mother whose husband is the child’s paternal uncle, or the maternal aunt whose husband is his paternal uncle, or the paternal aunt whose husband is his maternal uncle. Her right does not lapse because the harm to the child is absent due to the presence of compassion. This is taken from the commentaries of Al-Kanz. It is stated in Rahmat Al-Ummah: They differed on whether custody returns if she is divorced with a final divorce from a non-mahram of the child. Abu Hanifah, Shafi‘i, and Ahmad said it returns because the impediment has been removed. Malik, in his well-known opinion, said it does not return with divorce.

¹ The statement: “The maternal aunt is like the mother” indicates the establishment of the right of custody for maternal aunts. Thus, it is stated in Al-Mabsut.

¹ The statement: “And what can make you know what is the difficult pass? It is the freeing of a slave”: The Shariah encourages the freeing of a slave through this verse. Thus, it is stated in Al-Mabsut.

² The statement: “Leave him with her”: For this reason, it is stated in Al-Hidayah: There is no choice for the boy or girl. Shafi‘i said they have a choice because the Prophet (ﷺ) gave a choice. For us, due to the child’s deficient intellect, they choose the one who offers ease and allows play, so the choice is not reliable. It is established that the Companions did not give a choice. As for the hadith, we say he said: “O Allah, guide him,” so he was guided to the better choice through his (ﷺ) supplication, or it applies to one who has reached puberty. In detail: The child has no choice, as per Malik and our position, whether the child is discerning or not, boy or girl. Shafi‘i said if they become discerning, they are given a choice between the parents, based on what Abu Hurayrah (may Allah be pleased with him) narrated: A woman came to the Messenger of Allah (ﷺ) and said: “My husband wants to take my son, and he has provided me water from Abu Utbah’s well and benefited me.” Her husband said: “Is she disputing me over my son?” He (ﷺ) said: “This is your father, and this is your mother, so take the hand of whichever you wish.” He took his mother’s hand, and she left with him. For us, the child is young, not prudent, and unaware of their best interest, so their choice is not relied upon. Due to their deficient intellect, they choose the one who offers comfort and freedom, so the choice is not sound. The conclusion is that as long as they have not reached an age where they can choose what is more beneficial, giving them a choice is futile or harmful if they do not choose the more beneficial and compassionate parent but choose, due to poor understanding and deficient intellect, the one whose company is more harmful. Thus, when Umar ibn Al-Khattab and his divorced wife disputed over their young child, Abu Bakr As-Siddiq assigned the child to the mother and did not give him a choice. This was in the presence of the Companions, and none objected. Abu Bakr said: “I heard the Messenger of Allah (ﷺ) say: ‘A mother is not to be separated from her child.’” There is no proof for Shafi‘i in the hadith because it is possible the child was mature, which is apparent since the one who draws water from a well is mature. A pre-pubescent child is not sent to wells to draw water due to fear of falling in because of their limited intellect. We say if they reach puberty, they have the choice to live independently or with whichever parent they wish, unless they are foolish or corrupt, in which case they are joined to one parent for their own protection, like their wealth. There is no evidence that they are given a choice at seven, as the hadith does not mention the child’s age. Shafi‘i also cites that the Prophet (ﷺ) gave a child a choice between his mother and father and said: “Go to whichever you wish,” and said: “O Allah, guide him,” and he chose his mother. Our scholars responded that his supplication guided him to the better, more compassionate choice, so others are not compared to him. This is gathered from Al-Hidayah, and the commentaries of Al-Kanz and Umdat Ar-Ri‘ayah.