Feasibility of returning custody of the mother by separation from the second wife

Mohammadi, Seyyed Sajjad; Mousavian, Seyyed Abolfazl; Mortazi, Ahmad

doi:10.30497/law.2020.2699

Feasibility of returning custody of the mother by separation from the second wife

Type : Research Article

Authors

Seyyed Sajjad Mohammadi

Seyyed Abolfazl Mousavian

Ahmad Mortazi

10.30497/law.2020.2699

Abstract

The jurists agree that if a mother who has custody of her child marries someone other than the child’s paternal grandfather, her custody will be revoked. However, if the mother divorces her second husband, there is disagreement regarding whether her custody should be restored. Many Imami and Sunni jurists believe that when the mother divorces a non-related man, her custody is reinstated. In their view, the mother’s remarriage serves as a temporary barrier to the exercise of custody and is prohibited only due to the resulting impediment. In contrast, Maliki jurists and some Imami scholars hold that a mother’s remarriage permanently terminates her right to custody, even after divorce. It appears that the emergence of relevant narrations, along with the principle of the irreversibility of forfeited rights and the rule concerning the lapse of will upon loss of entitlement, indicates that the right of custody does not return to the mother following her separation from her new husband.

Keywords

Custody

right

judgment

irreversibility of the void

deterioration