Chapter IV: The Rights and Duties of the Child in Islam

 

 

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    The Islamic Charter on Family

     

    Chapter IV: The Rights and Duties of the Child in Islam

     

    This Chapter discusses the Islamic principles that govern the affairs of the child in Islam without addressing the laws and executive procedures of each country, with the purpose of harmonizing between the Article of the Charter and the circumstances of each Islamic society.  In the drafting of the Articles of this Chapter, care was taken that they should correspond with international agreements in content and in order, in order to facilitate the comparison of the Islamic perspective of children with other perspectives.

    In this Chapter, we strived to combine the rights of the child with his responsibilities to emphasize that the upbringing of the child must focus on a balance between his rights and his responsibilities in a gradual manner according to his stage of development, until he reaches a stage of complete responsibility.

    This Chapter includes all of the rights of the child which are balanced by social and family obligations, such as legal rights that are protected by the judiciary, rights that are imposed by innate, religious and social motives, and rights preceding the formation of the child as an embryo. This Chapter is comprised of seven sections:

     

     

    Section one: Caring for Children from the Beginning of the Formation of the Family

     This Section describes the care provided for the child from the start of the formation of the family which includes: seeking children as a means of preserving the human race, comprehensive care from the beginning of the marriage, instilling humanitarian ideals within the child, and abiding by the standards of successful marriage. These topics are covered in four articles.

    Article (91)

    Seeking Children to Preserve the Human Race

    1.Children are a divine blessing and an innate human desire.

    2.Shari'ah encourages the pursuit of progeny in order to preserve the human race.

    3. For this reason, Shari'ah prohibits sterilization of men and women, hysterectomies, and abortions except in cases of medical necessity, just as it also prohibits all means that hamper the continuity of humanity.

    4. It every child's right to come into life by way of a Shari'ah sanctioned marriage between a man and a woman.

    ------------------------------

    Clauses (1) and (2) of this Article clarify the status of children according to the view of Islamic Shari'ah and the sentiments of people, and explain the wisdom behind the existence of children.

    Clauses (3) and (4) clarify the means to achieve said objectives of Shari'ah.

    Clause (1): This Clause is based on the Words of Allah the Exalted:

    [ ] (: 49-50)

    [To Allah belongs the kingdom of the heavens and the earth.  He creates what He wills.  He bestows female (offspring) upon whom He wills, and bestows male (offspring) upon whom He wills. * Or He bestows both males and females, and He renders barren whom He wills. Verily, He is the All-Knower and is Able to do all things.] (42: 49-50)

    [ [ (: 46)

    [Property and children are the adornment of the life of this world.  But the good righteous deeds that last, are better with your Lord for rewards and better in respect of hope.] (18: 46)

    The aforementioned verses of the Noble Qur'an explain that children are a gift and a blessing from Allah, that the love of boys and girls is innate in human beings, and that they are one of the pleasures of this worldly life.  At the same time, these verses draw attention to the superiority of the pleasures of the Hereafter that cannot be reached by any way other than good deeds in this world. 

    *Clause (2):

    This Clause is based on the Words of Allah the Exalted:

    [ ] (: 61)

    [He brought you forth from the Earth and settled you therein] (11: 61)

    Spreading civilization on Earth is only possible with the continuity of life which necessarily requires the continuity of the human race and succession of the generations of mankind.  Such is the very same wisdom for which the Messenger (may the blessings and peace of Allah be upon him) encouraged the pursuit of offspring as it was reported that Ma'qal ibn Yasaar (may Allah be pleased with him) said:

    A man came to the Prophet (may the blessings and peace of Allah be upon him) and said, "I found a woman of noble status and beauty, but she is sterile. Should I marry her?" The Prophet (may the blessings and peace of Allah be upon him) answered, "No."  The man returned to him a second time and again the Prophet (may the blessings and peace of Allah be upon him) forbade him (from marrying her). When he returned a third time the Prophet (may the blessings and peace of Allah be upon him) said, "Marry the woman who is loving and prolific, for by you (Muslims) I will outnumber the other nations."[1]

    In the narration of the same hadith, Anas ibn Malik (may Allah be pleased with him) related:

    The Messenger of Allah (may the blessings and peace of Allah be upon him) used to command marriage and strictly forbid celibacy.  He used to say, "Marry the woman who is loving and prolific; I will outnumber the (followers of the) Prophets (by you) on the Day of Resurrection."[2]

    * Clause (3):

    This Clause includes two issues:

    The first: It indicates an imperative obligatory ruling for the realization of the mentioned objectives of Shari'ah, i.e. the prohibition of the sterilization of men and women, hysterectomies, abortion[3], and other means that hinder the continuity of humanity. The only exception to this prohibition is in the case of medical necessity as determined by experts.

    The second: Rejection of aberrant arrangements that are falsely termed "marriage", whether between two men, two women, collective unions, or other arrangements that are advocated based on a claim that marriage can take various forms.  Islam prohibited all of these because they are forms of unfruitful marriage that do not produce progeny to preserve humanity.  This prohibition in Islamic Shari'ah is confirmed by numerous indisputable texts from Shari'ah which prohibit adultery, homosexuality (whether male or female).  Islamic Shari'ah also orders the preservation of chastity and honor, as is frequently mentioned in the Noble Qur'an and the Noble Sunnah.  As such references are well known to all Muslims there is no need to cite them here. 

    * Clause (4):

    This Clause asserts the right of the child to come into this world by way of a normal marriage between a man and a woman, which is accepted by divine religions and laws, rather than by way of illegitimate relations.

    No counterpart to this Article exists in the Convention on the Rights of the Child that was issued by the United Nations. 

    Its counterpart in the Cairo Declaration, titled "Human Rights in Islam" issued by the Organization of the Islamic Conference in 1990, is stipulated in clauses (B) and (C) of the second Article of the declaration which state:

    Clause (B): It is forbidden to resort to any means that could result in the genocidal annihilation of mankind. 

    Clause (C): The preservation of human life throughout the time willed by Allah is a duty prescribed by Shari'ah.

    Also, Article (5A) of that declaration establishes that the family is the foundation of the societal structure, and that marriage is the basis of the establishment of families.

    ***

    Article (92)

    Comprehensive Care from the Start of the Marriage

    1.      The care of Islamic Shari'ah for children includes the following stages:

    a.      Each spouse's selection of the other spouse.

    b.      The period of pregnancy and birth.

    c.      The period from birth until discretion (the stage during which the child is unable to discriminate between affairs).

    d.      The period from discretion until puberty (the stage during which the child is able to discriminate between affairs). 

    2.      With each of these stages, the child is entitled to certain rights appropriate to that stage.

    ------------------------------

    This Article classifies the different stages that are included under the care given by Islamic Shari'ah to children, starting with the selection of the wife, passing through stages of pregnancy and birth until discretion and puberty. This will be further elaborated with its Islamic references in subsequent Articles.

    No counterpart to this Article exists in the Convention on the Rights of the Child, which is limited in its first Article to defining a child as being "every human being below the age of 18 years".

    ***

    Article (93)

    The Family is the Source of Human Values

    The family is the nest for the child and his natural environment that is necessary for his care and upbringing.  It also acts as the child's first school in which humanitarian, moral, spiritual, and religious values are instilled.

    ------------------------------

    This Article is dedicated to clarifying the importance of the family to the child.  The first verse of the chapter of An-Nisaa' states the pivotal nature of the family as the nucleus of human society.  Allah the Exalted says:

    [ ] (:1)

    [O mankind!  Be dutiful to your Lord, Who created you from a single person (Adam), and from him (Adam) He created his wife (Hawwa (Eve)), and from them both He created many men and women; and fear Allah through Whom you demand (your mutual rights), and (do not cut the relations of the wombs (kinship).  Surely, Allah is Ever an All-Watcher over you.] (4:1)

    He also says:

    [ ] (: 54)

    [And it is He Who has created man from water, and has appointed for him kindred by blood, and kindred by marriage.  And your Lord is Ever All-Powerful to do what He wills.] (25: 54)

    Likewise, the Messenger (may the blessings and peace of Allah be upon him) illustrated the family's immense effect on the child in his statement that was narrated by Abu Hurayrah, "There is no infant except that he is born on the fitrah (the pure innate inclination to worship Allah Alone) then his parents make him a Jew, Christian, or Magian."[4] 

    The gravity of modern trends in the west have led to the disintegration of the family; shifting it from being a family of multiple bonds (biological, human, emotional, communal as a whole) and having mutual obligations and rights, to a family based solely on an individual biological connection.  It has also resulted in encouraging both the father and mother to absolve themselves of their obligations towards their children.  Thus, this Article stresses the importance of the family in all aspects relating to the child in Islam, which places great emphasis on rearing the child among a family with extensive bonds for his protection, care, and upbringing.  The evidence for said notion is extensive in the Noble Qur'an, the Noble Sunnah, and Islamic jurisprudence, which provide regulations for all minor and major affairs and conditions of the family, as well as provisions related to inheritance, bequests, financial support, blood money, and other rights and obligations which extend beyond the individual realm of the family members.

    No counterpart to this Article exists in the Convention on the Rights of the Child, which only refers in its Articles (9) - (11) to the impermissibility of separating the child from his parents and places emphasis on reuniting families.

    ***

    Article (94)

    Adhering to the Criteria for a Successful Marriage

    It is the child's right upon his parents that each should make the optimal selection in choosing his partner and that they should adhere to the standards for a successful marriage that are outlined by Islamic Shari'ah and are stated in Article (51) of this Charter.

    ------------------------------

    In Islamic Shari'ah, the child's rights begin early on, even before the parents are married, by way of each spouse's optimal selection of the other as this naturally reflects on the child who is brought into this world with genetic characteristics acquired from each of his parents. Likewise, the selection of the father and mother also impact the environment in which he will grow and the care he will be given in the areas of health, nutrition, upbringing, education, etc.  The child, who will be subjected to the effects of such selection, and in whom they will materialize, has no one to foster his future benefit better than his parents.  For this reason, Islamic Shari'ah places emphasis on the recommendation that each spouse makes the best choice possible in choosing the other and that the should abide by the criteria for a successful marriage that has been specified by Islamic Shari'ah and which is stated in Article (51) of this Charter where it has been previously clarified and explained.

    Based on what has been mentioned, it is clear that the rights of the child are metaphorical rights that represent a moral quality that has a great effect on the conscience of the individual and his behavior in searching for a suitable partner for himself, in whom the values and principles that guarantee righteous offspring are materialized.

    No counterpart to this Article exists in the Convention on the Rights of the Child.

    ***


    Section Two: Freedoms and General Human Rights

     

    This Section discusses the freedoms and general human rights of the child.  It specifies his right to life, survive and develop; his right a welcome arrival into this world, his right to the protection of his identity, his right to the prohibition of discrimination, his right to health care, his right to compassionate treatment, his right to enjoy recreational time, his right to freedom of thought and religion, and his right to freedom of expression.  These rights are addressed in nine articles.

    Article (95)

    The Right to Live, Survive and Develop

    1.      From the time the child is formed as an embryo, the child shall have an inherent right to life, survival, and development.

    2.      Abortion of the embryo is prohibited unless the life of the mother is exposed to certain danger that cannot be avoided except by abortion.

    3.      The embryo shall have the right to receive health care and suitable nutrition by way of the care that is provided for his pregnant mother.

    4.      It is prohibited to harm the embryo in any manner, and Shari'ah has set a civil and punitive punishment for whoever violates this.

    ------------------------------

    This Article discusses the right to life, survival and development.

    This right commences from the time of the formation of the child as an embryo.  The life of the embryo in Islamic Shari'ah enjoys complete care and protection as it is considered to be a live person created by Allah, even though its life is nested inside the abdomen of his mother until sufficient growth for its live birth has been completed.

    The meaning of embryo in this context is that which is formed in the uterus from the sperm and the ovum, even before the soul enters the body 120 days from conception.[5]

    The  right to life is fundamentally connected to the right to survival and development. Accordingly, suitable health care and nutrition for the pregnant mother is necessary.  Islam has imposed on the father of the child the duty of supporting the pregnant mother financially for Allah the Exalted says: 

    [ [ (:6)

    [.And if they are pregnant, then spend on them till they lay down their burden.  Then, if they give suck to the children for you, give them their due payment, and let each of you accept the advice of the other in a just way.  But if you make difficulties for one another, then some other woman may give suck for him (the father of the child).] (65: 6)

    To protect the right to life of the embryo, Islam has prohibited abortion unless the life of the mother will be exposed to certain danger that cannot be avoided except by aborting the child.  This right is established by the general prohibition of killing:

    [ ] (: 151)

    [...And kill not anyone whom Allah has forbidden, except for a just cause (according to Islamic law).] (6: 151)

    It is also demonstrated by the specific prohibition of burying baby girls alive:

    [ ` ]  (: 8 9)

    [And when the female (infant) buried alive (as the pagan Arabs used to do) shall be questioned: * For what sin was she killed?] (81: 8-9)

    The permissibility of abortion, when the life of the mother is exposed to inevitable danger, is based on several fundamental principles of Shari'ah

    1.      Making exceptions in cases of necessity, as Allah the Exalted says:

    [ ] (:119)

    [. Except under compulsion of necessity.] (6: 119)

    2.      Giving the life of the mother precedence over the life of the embryo or fetus as the mother is primary, while the embryo is subsidiary, in application of the words of Allah the Exalted:

    [ ] (: 233)

    [.No mother shall be harmed on account of her child, nor father on account of his child.] (2: 233)

    3.      Enduring the least of two harms as the life of the mother is established while the life of the embryo or fetus is probable. 

    Islam has also prohibited anything that might harm the embryo or fetus in general, to the extent that it excuses his pregnant mother from the obligatory fast in Ramadan, though she is required to make up the missed days.  It was related on the authority of Anas ibn Maalik that the Prophet (may the blessings and peace of Allah be upon him) said, "Allah the Exalted has relieved the traveler from fasting and half of the prayers, and the pregnant or nursing woman from fasting."[6]

    Likewise, in the case that the woman is sentenced to execution as a Hadd (prescribed) or retributive punishment, Islam states that the execution should be delayed until she has given birth to her baby and nursed him until the time of weaning. It was narrated on the authority of 'Imraan bin Husayn that a woman from the tribe of Juhaynah approached the Messenger of Allah (may the blessings and peace of Allah be upon him) and she was pregnant from having committed adultery. She said, "O Messenger of Allah, I have committed an offence for which I deserve the Hadd punishment, so carry it out.  The Prophet of Allah called her guardian and said, "Treat her well, and when she gives birth bring her to me."  Her guardian did so, and the Messenger of Allah (may the blessings and peace of Allah be upon him) called for her and ordered that her clothes be tied to her, then she was stoned to death and then they performed the funeral prayer for her.  'Umar said in astonishment, "Are we to perform the prayer for her even though she committed adultery?"  The Messenger of Allah answered:

    She has repented in such a manner that if her repentance were to be divided between seventy people of Madinah, it would be sufficient for all of them.  Have you seen anything greater than this woman who presented herself to Allah![7]

    The prohibition of harming the embryo of fetus, or attacking its life, is an absolute prohibition in Islam, as it is a human being created by Allah, and thus, no human has the right to assault him, not even his father or his mother who is carrying him.  Likewise, even in the case of illegitimate pregnancy resulting from adultery, the mother is not allowed to abort because the child bears no blame for the crime of his parents as Allah the Exalted says:

    [ ] (: 15)

    [.No one laden with burdens can bear another's burden.] (17: 15)

    Article (6) of the Convention on the Rights of the Child stipulates the child's inherent right to life, survival, and development.  As for the other clauses, no counterparts exist, particularly as the trend to permit abortion has been expressed in other international discussions and declarations.   

    ***

    Article (96)

    The Welcoming of the Child

    At the time of his birth, it is the child's right that his parents give him a good name, demonstrate happiness and joy upon his arrival, and celebrate his birth.  Islamic Shari'ah commands that boys and girls be dealt with equally in such matters and it prohibits dissatisfaction with the birth of girls or harming them in any way.

    ------------------------------

    This Article comprises three points:

    1. Giving the child a good name

    2. Welcoming the child's arrival

    3. Treating boys and girls equally and not showing displeasure with girls

    These points are based on many Shari'ah texts:

    *Giving the child a good name:

    Ibn 'Abbaas (may Allah be pleased with him) related that the Prophet (may the blessings and peace of Allah be upon him) said, "It is the right of the child upon his father to give him a good name and teach him good manners."[8] Also, it was related on the authority of Abu Ad-Dardaa' (may Allah be pleased with him) that the Messenger of Allah (may the blessings and peace of Allah be upon him) said, "You shall be called on the Day of Resurrection by your names and the names of your fathers, so select good names for yourselves."[9]  

    Article (5) of the Egyptian Law for Protection of Children states, "It is not permissible for the name to be demeaning or insulting to the child's dignity, or counter to religious beliefs."

    * Welcoming the child's arrival

    It was narrated by Samurah (may Allah be pleased with him) that the Messenger of Allah (may the blessings and peace of Allah be upon him) said, "The child is on lien for his birth sacrifice which is slaughtered for him on the seventh day, and the child is named, and his head is shaved."[10]

    * Treating boys and girls equally

                See comments on Article (98) and (100).

    * Not showing displeasure in having girls

    Those who are displeased with the birth of a girl child are censured in the Qur'an as Allah the Exalted says:

    [ ` ] (: 58-59)

    [And when the news of (the birth of) a female (child) is brought to any of them, his face becomes dark, and he is filled with inward grief! * He hides himself from the people because of the evil of that whereof he has been informed.  Shall he keep her with dishonor or bury her in the earth?  Certainly, evil is their decision.] (16: 58-59)

    No counterpart exists for this Article in the Convention on the Rights of the Child.

    * * *

    Article (97)

    Protection of Identity

    The child shall have the right to maintain his identity, which includes his name, nationality, family affiliations, language, and culture, as well as his religious and cultural affiliation.

    ------------------------------

    This Article affirms the identity of the child, specifies its elements, and makes respect and protection of the identity obligatory. In many texts, Islam emphasizes respect of the disparities and variations between nations, peoples, folks, languages, and colors, and clarifies that such disparities are part of the system that Allah has set for the universe, and the inherent nature by which he created mankind, so that they would be drawn together and get to know each other.  Therefore, no change will you find in Allah's system of creation, and the Noble Qur'an expresses these facts in the words of Allah the Exalted:

    [ ] (: 13)

    [O mankind!  We have created you from a male and a female, and made you into nations and tribes, that you may know one another. ] (49: 13)

    [ ] (: 118-119)

    [And if your Lord has so willed, He could surely, have made mankind one nation, but they will not cease to disagree. * Except him on whom your Lord has bestowed His Mercy and for that did He create them.] (11: 118,119)

    [ ] (: 11)

    [O you who believe!  Let not a group scoff at another group; it may be that the latter are better than the former.  Nor let (some) women scoff at other women, it may be that the latter are better than the former.] (49: 11)

    At the same time, western civilization is constantly trying to impose its hegemony, culture, way of life, and conduct upon other civilizations.

    This Article corresponds with Articles (7) and (8) of the Convention on the Rights of the Child, which mention the elements of name, nationality, and family affiliations, but do not refer to language, culture, religious and cultural affiliations.  Family affiliations are referre

     
     

     

     

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