The family's legislation

Nurture (Hathana)

1- The definition of Nurture.

A- Linguistically: The word "Hathana" in the Arabic language is derived from the word "Huthn" which means bosom in the English language. When we say in the Arabic Language “he holds him in his ‘Huthn’ we mean he embraces him or he holds him in his bosom.

B- Its deepest meaning: It is to provide a child with the necessary education that he needs and to care for his physical and psychological health .The Islamic Sharia gives the woman priority to nurture the child because of having innate abilities, psychological and mental capacities that enable her to educate the youngster and care for his welfare.

The Fukaha agreed on the priority of the mother in nurturing her child. The prophet–may peace be upon Him said: «He who separates a mother from her child, Allah will separate him from his beloved the Day of Resurrection». [Reported by Imam Ahmad and At- Tirmidi from Abi Ayoub].

2- Its stance.

 Nurture is an obligation. The youngster needs a guardian to look after his needs.

3- The classification of the guardians (the persons who deserve to be guardians).

The Ulemas agreed on the classification (degree) of some guardians and disagreed on others.

¨         For the Hanifi doctrine, guardianship is classified as follow: the youngster’s mother, his maternal grand mother, his paternal grand mother, his sisters, his maternal aunts, his brother’s daughter, his sisters' daughter, his paternal aunts than the agnate males according to their order of entitlement to inheritance.

¨         For the Mâliki doctrine, guardianship it is classified as follow:  the youngster’s mother, his maternal grand mother, his maternal aunt, his father, his paternal grand mother, his sister, his paternal aunt, his brother’s daughter, his guardian, then the best from the agnates.

¨         For the Chafiî doctrine, it is classified as follow:  the youngster’s mother, his maternal grand mother, his paternal grand mother, his sister, his maternal aunt, his brother’s daughter, his sisters' daughter, his paternal aunts then the agnates.

¨         For the Hanbali doctrine, it is classified as follow:  the youngster’s mother, his maternal grand mother, his paternal grand mother then his closest consanguinities.

4- The conditions of the entitlement to nurture.

 The guardian is the one who has the right to nurture the youngster. The Ulemas agreed that nurture is the right of the guardian and the youngster, though that of the youngster is more prior than that of the guardian.

If the guardian desires to give up the right to nurture, it will shift to the custodian except if he is not eligible to assume the requisites of nurture.

A- General Conditions of the guardian.

The guardian must be:

1- Mature.

2- Sane.

3- Eligible.

4- Good mannered.

5- Muslim: the Malikists did not consider Islam as a condition for nurture. Therefore, even if the mother is a monotheist, she has the right to nurture for nurture stands for piety and affection. But in such a case, when the child matures, he returns back to his father to preserve his religion.

6- Sensible.

7- Safe from contagious and dangerous illnesses.

8- The guardian must guarantee an appropriate place for the youngster.

B- Specific conditions for women.

In addition to the above mentioned conditions, women must:

1- Not get married to a man who is foreigner to the youngster.

2- Have a blood relationship with the youngster.

3- Not inhabit a place that the youngster dislikes.

C- Specific conditions for men.

1. He has to be a Mahram if the youngster is a girl (Mahram is the man to whom she can not get married).  

2. The male guardian must be with a person eligible for nurturing the youngster like a wife.

5- The end of nurture.

The right of nurture expires once the period of nurture is finished or in case one of the above mentioned conditions vanishes.

For the majority of the Ulemas, if the obstacle disappears, the right of nurture will revert to those who deserve it. But for the Malikist, the right of nurture will not revert to the mother after her marriage to a foreigner.

6- The period of nurture.

The Fuqaha agreed on the fact that the duration of nurture stretches until the age of discretion (seven years according to the multitude of the Fuqaha).This duration may last a long for the girl. The guardian has to care for the circumstances of the youngster by adopting some fiqh views that are suitable for him.

7- The rights of the youngster.

- Moral rights.

Psychological care: the guardian shall not prevent the youngster from visiting his relatives. The latter and the youngster or the judge must set a time table of the visits that arrange the needs of the youngster.

- Material rights: to provide the child with the necessary material needs such as food, clothes… etc.

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