their rulings on particular cases. According to those who hold that her right to custody is extinguished altogether, custody never reverts to her, even if the child’s custodian dies while she is no longer married, whether through her husband’s death or divorce. According to those who hold that she loses her right only in relation to the person who takes custody of the child during her marriage, custody does not revert to her when her husband divorces her or dies so long as that custodian retains custody. If, however, the custodian’s right lapses through death or any similar cause while she is no longer married, custody reverts to her. Those who hold that she loses custody only for the duration of her marriage say that she may reclaim her child whenever her husband dies or divorces her.
The rationale for the first view is that, by marrying, she consents to relinquish her right to the child. The rationale for the second is that, by marrying, she consents to entrust the child to the person who will have custody during her marriage, but does not consent to relinquish her right altogether. The rationale for the third is that her marriage does not amount to consenting to give up the child, since marriage is a pressing need, like food and drink. Her situation thus resembles that of a woman who falls ill and becomes unable to care for the child: the child is taken from her for that reason, but once the impediment is removed, custody reverts to her and she takes her child back.
Section
These three positions are conceivable only according to the view that custody is a right belonging to the custodian. According to the view that it is a right belonging to the child, which is the position of Ibn al-Mājishūn, she may take the child back whenever she is no longer married. This disagreement also underlies their differing views concerning accommodation and payment for custody. Those who regard custody as the custodian’s right do not consider the custodian entitled to a fee or to rent for accommodating the child, since it would be inconsistent for caring for the child and taking the child into one’s home to be one’s own right while also giving rise to an entitlement to payment. Those who regard custody as the child’s right hold that the custodian is entitled to payment for caring for the child and likewise for accommodating the child. This is clear.
There is no disagreement that the father must provide maintenance and clothing, as well as the nursing fee if the child is still nursing. Mālik’s reported positions differ concerning a father who finds someone willing to nurse the child free of charge or for less than the usual nursing fee. He states in al-Mudawwana that the mother has the right to nurse the child for the customary fee paid to someone like her. One explanation is that this is because of her right to custody. Another is that it is because of her tender care when nursing the child and because her milk is more beneficial to the child, as it is reported that no