The Yale Journal for Humanities in Medicine

In this paper, attempts are made to study the role of Islamic family law[1] in preserving children’s health and well being by imposing Muslim families to fulfill the major rights of children most notably the rights of rada‘ (suckling), hadanah (custody)  and khitan (circumcision).[2] It is thought that proper maintenance is the right of a child whereby this duty is imposed on the respective father, while suckling and custody are imposed upon the mother. However, in the Muslim society, when parents are married and live together, have joined responsibility for the health and the well-being of their children i.e., the father is responsible to provide the material necessities, while the mother is responsible to take care on the welfare of their children bodily, mentality and moral.

I. Promotion of Child Health Care Through Suckling (Al-Rida‘)

It is obvious to all familiar with the rights of children that shouldering the responsibilities of pregnancy, child-birth and suckling the child for his/her health and well-being are the natural responsibilities of a mother. Since the first feeding of the child upon birth is mother’s milk, thus, according to Islamic family law, suckling is one of the child’s primary rights. To achieve this, Islamic family law urges the mother to feed the child, regardless of whether she is still married to the child’s father or divorced and has completed her ‘iddah. The Qur’an mentions this rule in the following verse:

The divorced mothers shall suckle their children for two whole years, if the fathers desire the suckling to be completed. In that case, the father of the child shall, in the fair known way, be responsible for their food and clothing. But none should be burdened with more than he can bear: neither should the mother be pressed unjustly (to accept unfair terms) just because she is the mother, nor should the father be burdened just because he is the father...and the same responsibility for the maintenance of the mother devolves upon the father of the child and his heir...There is no harm if they wean the child by mutual consent and consultation. Moreover, there is no harm if you choose to give your children suckle by a wet nurse, provided you pay her fairly.[3]

          The above verse clearly recommends that mother should suckle her child for a period of two years, but if there are unavoidable reasons, the child can be weaned even earlier. This command is not only limited to those women who are under fundamental obligation to suckle their children who cannot deny their children’s rights, but also to divorced women. It is the Islamic family law that, if a woman is required to suckle her child for a period of time, the husband, who is divorcing her, is obligated to bear the expenses of the mother of the child without failure through this period.[4] In the view that mother is better equipped to look after the well-being and health of child during childhood, Islam recommends that the child, after birth and during childhood and if the parents separate, should stay with the mother, to be suckled and raised by her during early childhood. The reasoning behind this rule is the provision of healthy and motherly emotional condition towards the child. Naturally, a mother is better equipped to look after the welfare of the child at the early stage because she is more patient than a man in this regard. She suckles and raises the child happily. In this condition, she reacts to the child primarily on the basis of her perception of the child’s needs as a person in his own right, her respect for those needs, and attempted practice to satisfy them to the best of her ability, in line with the command of Islamic teaching. Therefore, Islam asks the child to respect the mother who suckles her child, over the father. Abu Hurayrah (r.a) reported that a man enquired: O Messenger of Allah! Who is the most proper person for my good association? The Prophet replied “Thy mother”. Then he asked who was next? He replied “Thy mother. Then he asked who was the next? Prophet replied “Thy mother”. He enquired: who was next? Thy father.” [5] Again, the Prophet (s.a.w) gave very clear instruction when woman came to him and said: “Allah’s Messenger, my womb was a vessel to this son of mine, my breasts a water-skin for him, and my lap a guard for him, yet his father has divorced me and wants to take him away from me”, Allah’s Messenger replied: “You have more right to him as long as you do not marry.”[6]

[1] It is worth to mention that Islamic family law (al-Qanun al-Ahwal al-Shakhsiyyah), one of the most important branches of Islamic law (shari`ah), is the axis upon which Muslim families are founded. It governs the relationship of family members, which play a vital role as a basis for the Islamic social order and is a real cohesive force, which makes civilization possible. As a matter of fact, within the family system the basic Islamic values and its teachings are transmitted. Therefore, understandably, family is a positive permanent value of Islam, as well as, a necessary institution in the Shari‘ah. Besides, enjoying a common life, as well as, raising children as the new generation, the institution of family is an important place of security, protection and nurturing of love. This greatly contributes toward societal stability through the preservation of moral values on one hand and on the other toward individual preservation of physical health.

[2] For a medical concepts and notions concerning mother, child and family care, see S.K. Hamarneh, “Motherhood and Family Health in Early Arab Medicine,” in Studies in History of Medicine and Science IX, nos. 1&2 (1985): 1-13. With respect to the preservation of health (hifz al-sihhah), there is no doubt that it is the most important branch of Islamic medicine since it is primarily concerned with prevention of illness rather than with cure. The term health is sometime thought of as merely the absence of diseases. In this article, it is considered to encompass physical, emotional, and social well-being and health in a positive sense. For any one child this means a state of well-being and health appropriate to him as an individual, taking into account his age, his progress toward maturity.

[3] Al-Baqarah (2):233

[4] Ala’ Eddin Kharofa, Al-Ahwal al-Shakhsiyyah, 2 vols. (Baghdad: Maktabah al-Ma‘arif, 1963), 2: 194, hereafter cited as AS; Muhammad Muhyiddin Abdul Hamid, al-Ahwal al-Shakhsiyyah fi al-Shari‘ah al-Islamiyyah (Beirut: Dar al-Kitab al-‘Arabi, 1984), 384-389.

[5] Bukhari, Sahih Bukhari, Kitab al-Adab, Bab man Ahaqqa al-Nas bi al-husn al-Suhbah.

[6] Abu Dawud, Sunan Abi Dawud, Fi al-Talaq: Bab Man ahaqqa bi al-Walad, hadith no 2276; Muhammad Shamsuddin al-Haq al-‘Azim ‘Abadi, ‘Awn al-Ma’bud: Sharh Sunan Abi Dawud, 14 vols. (Beirut: Dar al-Fikr, 1979 (3rd edn), Bad Man Ahaqqa bi al-Walad, 6: hadith no 2259; Ibn al-Qayyim, Zad al-Ma‘ad fi Hady Khayr al-Ma‘ad, 5 vols. ed. Shu‘it al-Arna’ut and ‘Abd al-Qadir al-Arna’ut (Beirut: Dar al-Risalah, 1986), 5: 432, henceforth cited as Zad al-Ma‘ad.