Kula da yaro farilla ce domin yana iya halaka idan aka yi sakaci da shi. Ta hanyar kiyaye rai ne Allah (SWT) ya wajabta ta, don haka dole ne a kare shi daga mutuwa kuma a tsare shi daga hadari. Duk da cewa kula da yaro farilla ce, hakkin zumunci ma yana bukatarta, domin yaron yana da hakkin a kula da shi, don haka hakki da wajibci duka suna da alaka da riko. Hakki ne na kowane yaro, kuma wajibi ne a kan duk wanda Allah (SWT) ya wajabta masa kula da shi. Farilla ce a kan mai riko idan ba a sanya wani ba sai shi. Dangane da hakkin wanda Allah (SWT) ya wajabta masa riko, wajen karbar wannan riko, an kebe shi ga wadanda suka cancanta, ba kowa ba ne; don haka ba a ba da shi ga wanda da shi yaron tabbas zai halaka ba. Saboda haka, ba a ba da riko ga yaro ko ga mahaukaci ba, domin kowannensu ba zai iya daukar nauyinsa ba. Wannan saboda su kansu suna bukatar a kula da su, to ta yaya za su kula da wani? Haka kuma ba za a ba da shi ga wanda da shi yaron tabbas za a yi watsi da shi ba, saboda sakaci ko shagaltuwa da harkokinsa wanda ke rage iyawarsa ta kula da yaron. Ko kuma saboda yana da halaye kamar Fisq (fasikanci), misali, wanda ta yanayinsa zai lalata tarbiyyar yaron, tunda lalacewa ana daukarta a matsayin wata irin halaka.

Taking care of the child is fard because it may perish if it is neglected. It is by way of preserving a life that Allah (swt) has made it obligatory, so it has to be protected from death and safe from danger. Even though caring for the child is fard, its right of kinship also requires it, because the child is entitled to that caring, so the right as well as the duty are related to the custody. It is the right of every child and the duty of everyone whom Allah (swt) has obliged to take care of Him. It is fard on the custodian when no one else has been assigned other than Him. As for the right of the one on whom Allah (swt) has obliged the custody, in assuming this custody, it is specific to those who are qualified for it and it is not general; so it is not given to the one with whom the child will surely perish. Therefore custody is not given to a child or the one that is insane, because each of them is unable to undertake it. This is because they themselves are in need of custody, so how could they look after another? And it cannot be given to the one with whom the child will surely be ignored, due to negligence or preoccupation with their own activities which detracts from their ability to look after the child. Or because they are characterised with attributes such as Fisq (transgression) for example, which by its nature will corrupt the upbringing of the child, since corruption is considered a form of destruction.

Game kda kafiri, ba zai yiwu a yi tunanin cewa zai iya zama uba ga yaro alhali mahaifiyarsa Musulma ce, saboda haramcin da aka yi wa Musulmi mata na yin aure da kafirai. Don haka an tabbatar da cewa wanda ya cancanci riƙon yaron mace ce, ko uwa ce ko wata. A irin wannan hali sai an yi bincike. Idan yaron ya kai shekarun gane abubuwa, yana iya fahimta kuma ya bambance tsakanin halin uwarsa da halin ubansa, kamar lokacin da ya wuce shekarun yaye, to a wannan yanayi za a ba shi damar zaɓar tsakanin iyayensa biyu. Za a miƙa shi ga wanda ya zaɓa daga cikin su biyu, saboda abin da Abu Dawud ya ruwaito: Abdul Hamid ɗan Ja'far ya ruwaito daga mahaifinsa, daga kakansa Rafi' ɗan Sinan cewa shi (Rafi' ɗan Sinan) ya karɓi Musulunci, amma matarsa ta ƙi karɓar Musulunci. Ta zo wurin Annabi ﷺ ta ce: "'Yata; ta gama shayarwa (ko kuma za ta daina shayarwa)." Rafi' ya ce: "'Yata." Annabi ﷺ ya ce masa: "Ka zauna a gefe." Ya ce mata kuma: "Ki zauna a gefe." Sai ya zaunar da yarinyar tsakaninsu, ya ce: "Ku kira ta." Yarinyar ta karkata ga mahaifiyarta. Annabi ﷺ ya ce: "Ya Allah! Ka shiryar da ita." Sai yarinyar ta karkata ga mahaifinta, ya kuwa karɓe ta. Wannan hadisi Ahmad ya ruwaito. Al-Nasa'i ya ruwaito shi a wasu sigogi, amma ma'anarsa ɗaya ce da wannan riwayar.

As for the disbeliever, it cannot be imagined that He can be a father to a child while his mother is a Muslim due to the prohibition of Muslim women marrying disbelievers. It has been decided, therefore, that the person deserving custody of the child be a woman, whether the mother or someone else. In such a situation it will have to be examined. If the child is at the age of distinction and is able to comprehend things and understand the difference between the conduct of his mother and the conduct of his father, as when He is over the age of weaning; in this case He will be allowed to choose between his parents. He will be given to either of the two He chooses, due to what was reported by Abu Dawood that Abdul Hamid ibn Ja’far narrated from his father on the authority of his grandfather Rafi’ ibn Sinan that He (Rafi’ ibn Sinan) embraced Islam and his wife refused to embrace Islam. She came to the Prophet (pbuh) and said: “My daughter; she finished suckling (or was about to stop suckling) Rafi’ said: “My daughter.” The Prophet (pbuh) said to Him: “Be seated on a side.” And He said to her: “Be seated on a side.” He then seated the girl between them, and said to them: “Call her”. The girl inclined to her mother. The Prophet (pbuh) said: “O Allah! guide her.” The daughter then inclined to her father, and He took her. This Hadith has been reported by Ahmad. Al-Nasai reported it in other versions but the same meaning is present as in this narration.

Idan yaron yana karkashin shekarun hankali, bai fahimci abubuwa ba, kuma bai san bambanci tsakanin halin mahaifiyarsa da na mahaifinsa ba, har ma yana shan nono ko kuma ya kwanan nan ya daina, to ba a ba shi zabi ba, sai dai ya kasance tare da mahaifiyarsa. Wannan shi ne fahimtar hadisin Rafi' b. Sinan da aka ambata, kuma saboda an tabbatar da cewa uwa ta fi cancanta da kula da yaro, kuma babu wata nassi da ya hana ta samun kulawar yaron. Ba a kamata a ce a nan cewa hadana (kula da yaro) wilaya ce (iko), har kafiri ya zama ba zai iya rike musulmi a karkashin kulawarsa ba. Domin hakikanin hadana shi ne renon yaro da hidima gare shi, ba wilaya ba. Don haka dokokin wilaya ba sa aiki a kanta.

If the child is under the age of distinction and does not comprehend things and does not realise the difference between the conduct of its mother and its father in, such that He is still suckling or just finished He is not given a choice but is united with his mother. That is according to the understanding of the aforementioned Hadith of Rafi b. Sinan, and because it has been proven that the mother is more entitled to custody of the child and there is no text that prohibits her from gaining custody. It should not be said here that custody (Hadana) is guardianship (Wilaya) so a Kafir cannot have custody over a Muslim. Because the reality of custody is that it is (child) raising and service, and not guardianship. Thus the rules of guardianship do not apply to it.

Ummu ta fi cancanta da hakkin riƙon yaro da na mahaukaci idan ta rabu da mijinta. Wannan saboda abin da Abu Dawood ya ruwaito daga Abdullahi ɗan Amr ɗan al-As, cewa wata mace ta ce: “Ya Annabin Allah, mahaifata ta zama kwano ga wannan ɗana, nonuwana sun zama leda gare shi, cinyata kuma ta zama mafaka gare shi, amma mahaifinsa ya sake ni, kuma yana so ya ɗauke shi daga wurina.” Sai Annabin Allah ﷺ ya ce: “Kin fi cancantar sa muddin ba ki yi aure ba.” Ibn Abi Shaiba ya ruwaito daga Umar cewa ya sake mahaifiyar Asim. Daga baya ya je wurinta, Asim kuwa yana cinyarta. Ya so ya ɗauke shi daga gare ta. Suka ja shi tsakaninsu har yaron ya fara kuka. Sai suka je wurin Abu Bakr, wanda ya ce: “Shafarta, cinyarta da ƙamshinta sun fi kyau a gare shi fiye da naka, har sai ya girma ya zaɓi abin da yake so da kansa.” Idan uwa ba ta zama mai riƙo ba, saboda ba ta cika sharuɗɗan da aka ambata game da hakan ba, ko kuma ba ta cika wasu daga cikinsu ba, kamar yin aure ko kasancewarta mahaukaciya da sauransu, to ana ɗaukar ta kamar ba ta wanzu, sai haƙƙin riƙon ya koma ga wanda ya fi kusanci da ita wajen cancanta. Idan iyayen biyu ba su cancanci riƙon ba, to haƙƙin riƙon yana komawa ga wanda ya fi kusanci da su, domin ana ɗaukar su kamar ba su nan. Wanda ya fi cancanta da riƙon shi ne uwa, sannan uwayenta (uwar uwa da kakar uwa) da sama da su; daga cikinsu wadda ta fi kusanci da uwa ake ba fifiko, domin su mata ne kuma ƙwarewarsu wajen haihuwa tabbatacciya ce. Don haka ana ɗaukar su a matsayin uwa. Sannan haƙƙin riƙon yana komawa ga uba, sannan uwayensa (uwar uba da kakarsa); sannan ga kakan uba da uwayensa; sannan ga kakan kakan uba da uwayensa, koda kuwa ba sa gado, domin suna da dangantaka da waɗanda suka cancanci riƙon. In idan iyaye maza da mata sun rasu, to haƙƙin reno yana komawa ga 'yan'uwa mata. 'Yan'uwan mahaifiya da uba mata ana ba su fifiko; sannan 'yar'uwa 'yar uba kawai, sannan 'yar'uwa 'yar uwa kawai. 'Yar'uwa ana ba ta fifiko a kan ɗan'uwa saboda mace ce, kuma tana cikin waɗanda suka fi cancanta da reno. Ana ba ta fifiko a kan mazan da suke a matakinta (ta fuskar haƙƙin reno). Idan babu 'yar'uwa, to ɗan'uwan iyaye yana da haƙƙi mafi girma. Sannan ɗan'uwan uba kawai, sannan 'ya'yansu maza. Ɗan'uwan uwa kawai ba shi da haƙƙin reno. Idan ba sa nan, to reno yana komawa ga 'yan'uwan mahaifiya mata. Idan su ma ba sa nan, to ga 'yan'uwan uba mata. Idan su ma ba sa nan, to ga kawun uba ta bangaren iyaye biyu. Sannan ga kawun uba kawai. Kawun uwa ba shi da haƙƙin reno. Idan ba sa nan, to yana komawa ga innoni (na bangaren uwa) ta bangaren uwa, sannan ga innoni (na bangaren uwa) ta bangaren uba, sannan ga innoni (na bangaren uba) ta bangaren uba. Innoni (na bangaren uba) ta bangaren uwa ba su da haƙƙin reno, domin suna da alaƙa da mahaifin uwa, shi kuma ba shi da haƙƙin reno.

The mother is more entitled to have custody over the child and over the insane when she becomes divorced. This is due to what Abu Dawood has reported on the authority of Abdullah b. Amr b. al-As that a woman said: “‘Prophet 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 Prophet of Allah (pbuh) said: ‘You have more right to Him as long as you do not marry.’” Ibn Abi Shayba reported on the authority of Umar that He divorced the mother of Asim. Later He visited her and Asim was on her lap. He wanted to take Him from her. They pulled Him back and forth until the boy began to cry. So they went to Abu Bakr who said: “Her wiping, her lap and her smell are better for Him than yours until He grows up so that He can choose for Himself.” If the mother is not a custodian because she does not meet the conditions mentioned with regards to it, or she does not meet some of them such as being married or insane etc. she is considered as if she does not exist, and so the right of custody passes to the closest to her in entitlement. If the parents do not qualify as custodians then the right of custody goes to whoever is closest to them because they are considered as missing persons. The one most entitled to custody is the mother and then to her mothers (mother and grandmother) and higher; the closest from amongst them to the mother is given precedence, because they are women and their experience of childbearing is certain. So they are considered in the same sense as a mother. The right of custody then goes to the father, then his mothers (mother and grandmother); then to the grandfather and then to his mothers; then to the father’s grandfather and then to his mothers even if they do not inherit, because they have relations with those who are qualified to be custodians. If the fathers and mothers have died then the right of custody passes to the sisters. The sisters of the mother and father are given precedence; then to the half sister through the father and then to the half sister through the mother. The sister is given precedence over the brother because she is a woman and thus one of those best qualified for custody. She is given precedence over those men who are at her level (in terms of the right to custody). If there is no sister then the brother of the parents have greater entitlement. Then the half brother through the father and then to their sons. The half brother through the mother has no right to custody. If they are not present then the custody passes to the maternal aunts. If they are absent then to the paternal aunts. If they are absent, then to the paternal uncle through the two parents. Then to the paternal uncle through the father. The uncle through the mother is not entitled to custody. If they are absent then it passes to the grand aunts (maternal) through the mother, and then to the grand aunts (maternal) through the father, and then to the grand aunts (paternal) through the father. The grand aunts (paternal) through the mother are not entitled to custody because they are related to the mothers father and He has no right to custody.

Hadanar yaro ba ta wuce daga wanda yake da cancanta zuwa wanda ke biye da shi ba sai dai idan ya/ta yi gaba, ko kuma saboda rashin cikakken ikon yi (Ahliyya). Sai dai idan wanda yake da haƙƙin hadana ya bar hadanar yaron, to hadana ba za ta koma ga mai hadana na gaba ba sai idan shi ma yana da ikon yin hadanar. Domin hadana, duk da cewa haƙƙi ne na mai hadanar, a lokaci guda kuma wajibi ne a kansa da kuma haƙƙi ga yaron. Saboda haka barin hadana ba zai yiwu ba sai dai idan wanda ya cancanta ya ɗauki wannan wajibi. Sai a lokacin ne hadana za ta koma ga wanda ya fi kusa da mai hadanar da ya bar hadanar, bisa ga tsarin da ke sama. Idan wanda ya bar haƙƙin hadana ya so ya sake neman wannan haƙƙi, kuma ikonsa na yin hadanar yana nan, to yana riƙe da wannan haƙƙi kuma ana mayar da yaron gare shi. Haka nan, idan uwa ta sake aure kuma haƙƙin hadanarta ya ƙare, amma idan ta rabu da mijin nata (aka sake ta), to haƙƙin hadanar yaron yana dawowa gare ta. Haka kuma, duk wani dangi da yake da haƙƙin hadana amma wani abu mai hana shi ya hana shi, idan abin da ya hana shi ya ƙare, to haƙƙin hadanarsa yana dawowa, domin dalilin hadana yana nan.

Custody does not pass from one that is entitled to the next entitled except in the event of his/her absence or in the event of incapacity (Ahliyya). However, if the one with the right of custody abandons custody of the child then custody does not pass to the next custodian unless they are capable of custody. Because custody, even though it is the right of the custodian, is also at the same time an obligation upon Him/her and a right for the child. So to relinquish custody is not possible except if someone who is qualified undertakes the obligation. Only then does custody pass to whoever is closest to the custodian who has relinquished his custody according to the above order. If the one who has relinquished the right to custody wishes to demand that right again and their capacity to take custody still exists then they maintain that right and the child is returned. Likewise, if the mother remarried and her right to custody is nullified, but was she divorced then her right to the custody of the child reverts back to her. Similarly, for any relative who is entitled to custody but is prevented by an impediment, if the impediment ceases then their right to custody returns because the reason for custody still exists.

Idan wasu mutane suka yi takaddama game da wanda ya fi cancanta da renon yaro, to ana fifita zuriyar wanda ya fi cancanta da renon. An rawaito daga al-Barra’ ɗan ‘Azib cewa ‘Ali, Ja’far da Zayd sun yi takaddama game da ’yar Hamza. ‘Ali ya ce: “Ni ne na fi cancanta da renon ta, domin ita ’yar ɗan’uwan mahaifina ce.” Ja’far ya ce: “Ita ’yar’uwata ce, kuma innarta (wato ƙanwar uwarta) matata ce.” Zayd ya ce: “Hamza ɗan’uwana ne.” Manzon Allah ﷺ ya yanke hukunci a madadin innarta (ƙanwar uwarta). Ya ce: “Ƙanwar uwa tana cikin matsayin uwa.” Duk wannan yana kan yaron da yake buƙatar renon domin kare shi daga mutuwa. Amma yaron da ba ya buƙatar renon, to saboda rashin buƙatarsa da renon, dalilin renonsa (’illa) yana ɓacewa, don haka hukuncin wajabcin renonsa da haƙƙin dangoginsa na renonsa yana ɓacewa. Sannan za a duba lamarin. Idan wanda yake da haƙƙin renon, kamar uwa, kafiri ne, to za a ɗauke shi daga gare ta a ba wanda yake da wilayar kula da shi, domin hakikanin al’amarin ya koma wilaya ba renon ba. Wilaya kuma ba ta halatta ga kafiri saboda faɗar Allah (SWT):

If a group of people dispute over which of them is more entitled to the custody of a child, the descendent of the one who is more entitled to custody is preferred. It is narrated by al-Barra b. ‘Azib that ‘Ali, Ja’far and Zayd disputed about the daughter of Hamza. Ali said; “I am more entitled to take custody of her because she is the daughter of my paternal uncle.” Ja’far said: “She is my cousin and her aunt (maternal) is my wife.” Zayd said: “Hamza is my nephew.” The Messenger of Allah passed judgement in favour of her aunt (maternal). He (pbuh) said: “The maternal aunt is in the position of the mother.” All of this is with regards to the child which is in need of custody in order to protect it from death. As for the child which is in no need of custody, then by the absence of his/her need for custody, the reason (Illa) of his custody disappears, and thus the rule of the obligation for his custody and the right of his relatives to custody disappears. Then the matter will be examined. If the one who had the right to custody, such as the mother, was a disbeliever then He will be taken from her and given to someone who has guardianship over Him because the reality has changed to guardianship not custodianship. Guardianship is not allowed for a disbeliever due to his (swt)’s saying:

“Kuma Allah ba zai taba sanya wa kafirai iko a kan muminai ba” [An-Nisa: 141]. Haka kuma saboda faɗinsa (SWT): “Musulunci zai ci gaba da mamaye komai, kuma babu abin da zai mamaye shi.” Maganar tana da faɗi, babu abin da ya zo ya takaita ta, kuma batun renon yara na musamman bai shafi Allah ba, domin Shi ba shi da buƙatar a rene Shi. Amma idan waɗanda suka cancanci rikon yaro da kuma waliyyanci Musulmi ne, kamar lokacin da uba da uwa suke Musulmi, to yaro ko yarinya, watau ƙaramin yaro ko ƙaramar yarinya, za a ba su zaɓi tsakanin uba da uwa. Duk wanda suka zaɓa za a haɗa su da shi, saboda abin da Ahmad, Ibn Majah da al-Tirmidhi suka ruwaito daga Abu Hurairah “cewa Annabi ﷺ ya ba wani yaro zaɓi tsakanin ubansa da uwarsa.” Haka kuma a cikin ruwayar Abu Dawud: wata mace ta zo wurin Annabin Allah ﷺ ta ce: “Mijina yana son ya kwashe mini ɗana, ya Annabin Allah, kuma shi ya ɗebo mini ruwa daga rijiyar Abi Inabah, kuma yana yi mini alheri.” Annabin Allah ﷺ ya ce: “Ku yi kuri’a a kansa.” Mijinta ya ce: “Wane ne yake jayayya da ni game da ɗana?” Annabi ﷺ ya ce: “Wannan ubanka ne, wannan kuma uwarka ce, don haka ka riƙi hannun wanda ka so.” Sai ya riƙi hannun uwarsa, ita kuma ta tafi da shi. Al-Bayhaqi ya ruwaito daga Umar cewa ya ba wani yaro damar zaɓi tsakanin ubansa da uwarsa. Haka kuma ya ruwaito daga Ali cewa ya ba Amara al-Jizzami damar zaɓi tsakanin uwarsa da goggonsa lokacin da yake yaro ɗan bakwai ko takwas. Waɗannan hadisai a bayyane suke, kuma a cikinsu akwai dalili cewa idan uba da uwa suka yi jayayya game da ɗansu, to wajibi ne a ba yaron zaɓi; kuma zai tafi da wanda ya zaɓa. Amma batun yin kuri’a da aka ambata a ruwayar Abu Dawud, ba a ambace shi ba a ruwayar al-Nasa’i ko a sauran ruwayoyin. Ana fahimtar da wannan cewa yana nufin halin da yaron bai zaɓi ɗaya daga cikinsu ba. Ba a ƙayyade bayar da zaɓi da wani takamaiman shekaru ba. Maimakon haka, ana mayar da al'amarin ga alkali ya yanke abin da yake ganin daidai ne bisa ga kimantawar masana. Idan suka ce ba ya buƙatar renon, watau kulawa, kuma alkali ya tabbata da hakan, to zai ba shi zaɓi. In ba haka ba, zai bar shi tare da wanda yake da haƙƙin renon shi. Wannan kuma yana bambanta gwargwadon yara. Wani yaro ba zai buƙaci renon ba yana shekara biyar, wani kuma ba zai buƙace shi ba yana shekara tara. Abin dubawa shi ne shekarun yaron ta fuskar ko yana buƙatar renon ko a'a.

“And Allah will never allow an authority to the disbelievers over the believers” [An- Nisa: 141] And because of his (swt) saying: “Islam will always dominate and nothing shall dominate over it.” The speech is general, nothing has come to specify it and the specific discussion of upbringing does not apply to Him for He is in no need for upbringing. But if those entitled to custodianship and guardianship are Muslims, such as when the father and mother are Muslims, then the boy or the girl i.e. young boy or girl will be given the choice between the father and mother. Whichever one they choose they will be joined to, due to what Ahmad, Ibn Maja and al-Tirmidhi have reported on the authority of Abu Hurayra “that the Prophet (pbuh) gave a boy the choice between his father and mother.” And in the narration of Abu Dawood: that a woman came to the Prophet of Allah (pbuh) and said: “My husband wishes to take away my son, O Prophet of Allah, and He drew water for me from the well of Abey Inabah and He has been good to me.” The Prophet of Allah (pbuh) said: “Cast lots for Him”. Her husband said: “Who is disputing with me about my son?” The Prophet (pbuh) said: “This is your father and this is your mother, so take the hand of whomever you wish. So He took his mother’s hand and she went away with Him.” Al-Bayhaqi has produced a report from Umar that He granted a boy the chance to choose between his father and mother. He also produced a report from Ali that He granted Amara al-Jizzami the right to choose between his mother and paternal aunt when He was a boy of seven or eight years of age. These Ahadith are clear and there is evidence within them, that if the father and mother dispute over their child, then it is obligatory to give the child the choice; and they will go with whoever is chosen. As for the casting of lots mentioned in the narration of Abu Dawood, it is not mentioned in the narration of al-Nisai nor in the other narrations. It is understood to refer to a situation where the child did not choose either of them. The granting of choice is not restricted to a specific age. Rather, it is referred to the judge to decide what He deems correct according to the estimation of the experts. If they say He does not require custody, i.e. upbringing, and the judge is convinced of that, then He will grant Him the choice. Otherwise He will leave Him with the one who has the right to raise Him. This differs according to the children. A child may not be in need of custody when He is five years old, another child may not need it when He is nine. The consideration is the age of the child in terms of whether He is in need for custody or not.