for fear that the father may take the child from her. In reality, this reflects a deficiency in a woman’s judgment, for what she ought to do is marry. The One who gave her the first child can give her other children, and Allah may perhaps place in her heart a love for them greater than her love for the second child. Perhaps the father will not seek custody of the child, or perhaps someone may intervene to reconcile them.

The scholars differed concerning the reason why marriage nullifies a mother’s right of custody. Some scholars said that it is because this would place the child in the care of the new husband; and no one would be content for his child to be under the care of an unrelated man.

Others said: Rather, the reason is to safeguard the right of the new husband. Based on this latter reasoning, if the new husband agreed that the child should remain in the mother’s custody, her right would not be forfeited. However, what our jurists held—and it is the strongest of these explanations—is that the reason is that this new husband is unrelated to the child. If he is unrelated, he may not show the child mercy or care whether the child is neglected or well cared for.

His statement, “from the time of the contract,” means that the mother’s right is forfeited as soon as the marriage contract is concluded, even if consummation has not taken place. Thus, even if she stipulates to the second husband that there be no consummation until the period of custody has ended, her right is still forfeited, because the determining factor is the contract. Yet, if it were held that the determining factor is consummation, such that if she stipulated to her new husband that there be no consummation until the custody period ends, her custody would not be forfeited in that case, this would not be far-fetched. For in that situation, the new husband has no authority over the wife, cannot take her into his care, and cannot occupy her to the exclusion of her son.